               Case: 13-13232        Date Filed: 01/30/2015      Page: 1 of 44




                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-13232
                               ________________________

                         D.C. Docket No. 1:12-cr-20771-RSR-1

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

NATOYA MASHEA HANDY,

                                                                       Defendant-Appellant.

                               ________________________

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

                                     (January 30, 2015)

Before HULL, JULIE CARNES and WALKER *, Circuit Judges.

PER CURIAM:



       *
         Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit,
sitting by designation.
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       After a jury trial, Natoya Mashea Handy appeals her convictions and total

sentence of 51 months’ imprisonment and a $7,000 fine for one count of

possessing 15 or more unauthorized access devices, in violation of 18 U.S.C.

§ 1029(a)(3), and five counts of aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1). After careful review of the entire record, and with the benefit of

oral argument, we affirm Handy’s convictions and sentences.

                 I. TRAFFIC STOP AND SEIZURE OF EVIDENCE

       This case involves the April 5, 2012 traffic stop of defendant Handy by City

of Miami Gardens police officers. Handy was driving a rental car which the

officers impounded and searched. The evidence obtained during the inventory

search eventually formed the basis of the federal prosecution in this case. We base

our description on the evidence presented at trial, as well as testimony given during

a pretrial suppression hearing.1 We highlight the conflicting evidence regarding

certain facts.

A.     The Traffic Stop

       On April 5, 2012, then-Detective William Wagenmann 2 of the City of

Miami Gardens Police Department (“Police Department”) was conducting


       1
        In considering the denial of a motion to suppress, we may consider both the evidence
presented at the suppression hearing and the evidence presented at trial. United States v.
Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir. 1995).
       2
         Wagenmann was a detective at the time of the traffic stop but had been promoted to the
rank of sergeant by the time of the suppression hearing and trial in this case.
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surveillance as part of a robbery-prevention detail. Detective Wagenmann

observed a silver Chevrolet Impala, driven by defendant Handy, with a Georgia

license plate and heavily tinted windows circling the surveillance area. The

windows of the Impala were so darkly tinted that Detective Wagenmann “couldn’t

see anything inside.” The darkly tinted windows violated a Florida law that

limited window tinting to a level at which a vehicle’s occupants would be visible.

      The out-of-state license plate and illegally tinted windows prompted

Detective Wagenmann to run the Impala’s license plate, and he thereby learned

that the Impala was a rental. In Detective Wagenmann’s experience, the

perpetrators of a number of past Miami Gardens robberies and burglaries had used

rental cars with heavily tinted windows or out-of-state plates. Therefore, Detective

Wagenmann contacted the other members of the surveillance team and alerted

them to the Impala’s presence.

      Detective Cheri Nettles, another member of the surveillance team, spotted

the Impala and started following it, after which it sped up and continued erratically

circling the area. Detective Nettles then initiated a traffic stop of the Impala.

      As Handy and Detective Nettles were stopping their respective vehicles,

Detective Wagenmann pulled up behind Detective Nettles’s vehicle. Once on foot,

Detective Nettles approached the driver’s side of the Impala, while Detective

Wagenmann approached the passenger side. Detective Nettles asked for Handy’s


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driver’s license and registration, and Handy produced her driver’s license and

informed Nettles that the Impala was a rental. Detective Wagenmann requested

Handy’s permission to search the Impala, but she declined.

         Detective Wagenmann subsequently moved to the driver’s side of the

Impala and asked Handy about the dark tint on the windows. Handy replied that

she was an entertainer and did not want to be recognized in her car, so she had dark

tint applied to the windows.3 Handy claimed to be in the area visiting a friend, but

she was unable to provide an address, a location, or even an area where the friend

lived.

         Handy provided Detective Wagenmann with a copy of the rental contract for

the Impala, and in reviewing the contract, he learned that the car was about a week

overdue, as the rental contract was only for a single day: March 26 to March 27,

2012. When Detective Wagenmann asked Handy about the expired rental

agreement, Handy advised him that she had contacted the rental company,

Advantage Rent-a-Car (“Advantage”), and had extended the rental over the phone.

B.       Detective Wagenmann’s Conversation with Advantage

         In order to verify the rental contract for the Impala, Detective Wagenmann

then called Advantage using a toll-free number and spoke with “Heath” in


         3
        Subsequently, Detective Wagenmann measured the tint of one of the Impala’s windows,
confirmed that the window illegally permitted visible light penetration at a rate of only 4 percent,
and issued Handy a citation for illegal tint.
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Roadside Assistance. Heath checked Advantage’s records and advised Detective

Wagenmann that the Impala was overdue and that Advantage had made numerous

unsuccessful attempts to contact Handy to have it returned. 4 Heath further stated

that no one had contacted Advantage to extend the rental and requested that

Detective Wagenmann impound the vehicle so that Advantage could retrieve it.5

At the suppression hearing, Detective Wagenmann testified that, to the best of his

recollection, he never told Heath that he suspected the car was involved in a crime

or that he wished to tow the car for that reason.

       Heath’s notes in Advantage’s computer records confirm Detective

Wagenmann’s call, stating that Wagenmann “adv[ised that] he has [the Impala]

pulled over.” However, in contrast to Detective Wagenmann’s testimony that he

never told Heath that he suspected the Impala had been used in a crime, the notes

state that, according to Wagenmann, the Impala “is under suspicion of being used

in a crime and contract overdue” but that the “renter claims she’s already extended

it.” Under “Resolution Description,” Heath noted that he “adv[ised] Det[ective]

[Wagenmann] I don’t show it [to] be extended and called . . . [the manager on

duty] who adv[ised] he’s been trying to contact cust[omer] to extend it but she

       4
        Testimony also established that, according to Advantage records, Advantage had
attempted multiple times to get credit card authorization for additional charges incurred while the
Impala was overdue, but Handy’s credit card was denied each time.
       5
        The arrest affidavit prepared by Detective Wagenmann avers that the Advantage
representative “advised that the car was overdue, and [the representative] wanted it returned.
[Handy] was advised that the car was being impounded at the request of the rental car company.”
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doesn’t answer her phone. Det[ective] [Wagenmann] adv[ised] he’s going to

impound the veh[icle].”

      The “manager on duty” referenced in Heath’s notes was John Scott, the

manager for the local Advantage location from which Handy had rented the

Impala. The record indicates that, while on the phone with Detective Wagenmann,

Heath twice placed Wagenmann on hold to speak with Scott on another line.

      At the suppression hearing, Scott testified for the defense that, when he and

Heath initially spoke, Heath told him that Handy had been stopped by the police

and was claiming that her rental contract had been extended and that Heath wished

to verify whether the contract had been extended. Scott confirmed that the Impala

was overdue but advised Heath to speak directly to Handy and ask her permission

to run her credit card to “bring the account up to current,” assuming the card had

sufficient funds.

      However, Heath placed Scott on hold and, after he came back on the line,

“[Heath] said the car—the officer said the car—he is want[ing] to take the vehicle

because the vehicle had been involved [in] crimes.” Scott testified that, according

to Heath, it was the police officer who wanted the car towed. At that point,

because “the car was being involved in a crime, [pursuant to the] company’s

policy, [Scott] gave the okay to take the vehicle.” Scott and Detective Wagenmann

never spoke directly.


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C.    Advantage’s Policies on Overdue Rentals

      At the suppression hearing, William Kinnebrew, a corporate security

manager for Hertz Corporation, which owned Advantage at all relevant times,

testified about Advantage’s policies on overdue rentals. Kinnebrew testified that

Advantage’s normal policy when contacted by police about an overdue rental car is

to effectuate repossession of the car either by having the police impound it or

sending a tow truck to retrieve it.

      In contrast, Scott, Advantage’s manager on duty, testified that his normal

practice was to wait 60 days before referring an overdue rental to Advantage’s

security department for repossession efforts. According to Scott, Advantage did

not have a general policy of requesting a rental be towed anytime a police officer

called, and he had at least one experience in which he extended a rental contract

over the phone with a customer after the police had called.

      Scott further testified that, as to Handy in particular, she had rented vehicles

from Advantage on a regular basis over a period of one to two years, and that she

previously had failed to return a rental car when the contract expired. However, in

such instances, Advantage would contact her concerning the expired contract and

“most of the time . . . would be able to reach her after a while[,] and she would

come in, close it out, pay.” Scott could not recall a time when Handy ever failed to

pay for a rental.


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D.    The Impoundment of the Impala and the Police Department’s Policy on
      Impounded Vehicles

      Returning to the events of April 5, 2012, Detective Wagenmann—after

speaking with Heath at Advantage—advised Handy of Advantage’s statement that

the rental contract had not been extended, that Advantage wanted to retrieve the

car, and that the police would be impounding the car. Handy became

argumentative, stating that she had rented the car, that it was hers, and that

Detective Wagenmann could not take it.

      Because Detective Wagenmann was impounding the Impala, he conducted

an inventory search of the car, pursuant to the Police Department’s Policy Manual

on Towing Vehicles, Vessels, and Aircraft (“Policy Manual”). This inventory

search was primarily to protect the Police Department from liability for any items

that may later be claimed missing from the car and to ensure that the car contained

no weapons that would be taken to the impound yard.

      The Policy Manual, which was entered into evidence at the suppression

hearing, provided that it was the Police Department’s policy “to safeguard and

properly document the contents of . . . towed conveyances.” The Policy Manual

directed any employee requesting a tow to do so via “the Communications Center”

and to provide certain information, including whether the tow was “[p]olice

directed or [pursuant to a] private request.” The Policy Manual also stated, in

Section D.2, entitled “Vehicle, Vessel or Aircraft Inventories”:
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         In the course of duty on a day-to-day basis, it is necessary for the
         protection of the employee and the Department to inventory vehicles,
         vessels or aircraft being towed and/or stored. Vehicles, vessels or
         aircraft which are towed as a result of an accident, abandonment,
         seizure, incident to an arrest, or otherwise detained in storage, and not
         in the possession of the owner, become the responsibility of the
         impounding employee. The employee is liable for the vehicle, vessel
         or aircraft [and] its parts and contents. The contents of the vehicle,
         vessel or aircraft include, but are not limited to, all packages and
         containers located within the passenger compartment, the trunk, or
         any other secured area of the vehicle (i.e., glove box, console, under
         seat, etc.) To insure that liability does not attach for property located
         within any vehicle, vessel or aircraft or any package/container, the
         contents of said vehicle or package/container, whether locked, opened
         or closed, shall be ascertained and inventoried.

         Detective Wagenmann testified that his normal procedure was to search and

inventory any vehicle that was being towed, even if it was being impounded at the

request of a private party and not for criminal conduct. 6 He also testified that it

was the policy of the Police Department to have overdue rental cars towed for

rental companies, and that the police officers effectuated such tows “[a]ll the

time.”

E.       The Inventory Search

         During the inventory search of the Impala, Detective Wagenmann found, on

the front passenger seat, a cell phone and charger, the packaging for a rechargeable

Green Dot debit card, three photocopies of a Florida identification card for “Willie
         6
         In contrast, Detective Miguel Irizarry of the Police Department, who was called to
testify concerning the Policy Manual, testified on cross-examination that he would not search
and inventory a vehicle that he was having towed at the request of a private individual or
company in the absence of an arrest of the driver or probable cause of a crime.

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Donnell,” two Wells Fargo bank statements addressed to Donnell, a checkbook,

and a package of blank 1099 tax envelopes. 7 Detective Wagenmann removed

these items from the Impala and moved them to Detective Nettles’s car, where

Handy was waiting. As Detective Wagenmann did so, Handy explained that “she

was helping her aunt[, Willie Donnell,] clear up a banking issue, and that’s why

she had those items in the vehicle.”

       Detective Wagenmann then returned to the Impala and began searching the

rear passenger area, where he found an Apple laptop computer and charger. He

opened the lid of the laptop to check whether the screen had any damage, and the

screen lit up and revealed an open Adobe file with a tax return for “Reynardo

Britt.” Handy told Detective Wagenmann that the laptop was hers.

       Detective Wagenmann next inventoried the items in the trunk of the car,

which included clothing and a large, black backpack that contained about $2,960 in

cash, an HP laptop, a red G-Shock watch, an iPod Nano, deodorant, skin lotion,

soaps, cell phone chargers, a hairbrush, and some boxes of prescriptions in the

name of “Rochelle Majors.” Handy claimed ownership of the backpack, cash, HP

laptop, watch, and iPod, and stated that a friend of hers had given her the

prescription to treat her eczema.

       7
        At trial, Sergeant Wagenmann testified that Green Dot debit cards are commonly used
by the government to distribute income tax refunds, and that the cards are often used for fraud.
He also explained that the 1099 envelopes are used by employers to provide statements showing
what they had paid to independent contractors during the tax year.
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      The backpack also contained some tax documents and forms; pieces of mail

in various persons’ names; checks written by Handy; checks written to Handy; a

motor vehicle registration; credit card payment envelopes; bank statements in other

people’s names; and other financial documents. Specifically, the mail included

pieces addressed to “Genia Bennett,” Handy’s uncle; a PayPal card for Donnell;

another letter from Wells Fargo to Donnell; correspondence addressed to

“Constance Wood”; a tax document sent to “Shauna Gibson”; a W-2 form for

“Anthony Randell”; a tax document for “Erica Smith”; a letter from the

Department of Treasury to “IME, Inc.,” a company that Handy claimed to own;

and letters from Capital One, Credit One Bank, and Chase Bank addressed to

Handy. As Detective Wagenmann removed these items and inventoried them in

front of Handy, she claimed ownership of any paperwork bearing her name but

denied any knowledge of the documents bearing other individuals’ names.

      Detective Wagenmann found the backpack to further contain chargers and

cords for the laptops; three cell phones; a SanDisk flash card; traffic citations;

boarding passes; numerous credit cards in the names of Donnell, Handy, and “N

Finance”; bank receipts for deposits and withdrawals; and a variety of receipts,

including from Walgreens and National Rent-a-Car. Handy claimed that the cell

phones were old phones that she no longer used and that the cell phone in the front

seat was her current phone. As to the credit cards, Handy said that N Finance was


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another company that she owned, and she claimed ownership of any of the credit

cards bearing N Finance’s name. Handy stated that the cards in Donnell’s name

were related to the banking issue she was attempting to clear up for Donnell.

Detective Wagenmann also found several rechargeable debit cards that did not bear

any name, and Handy denied any knowledge of these cards.

      Finally, Detective Wagenmann also found in the backpack two red, spiral-

bound notebooks. When he removed the notebooks, multiple loose pages fell out

that contained lists of names, dates of birth, and social security numbers. One of

the loose pages alone contained a list of 68 names, dates of birth, races, and social

security numbers. The pages of the notebooks also contained lists of credit card

account numbers, expiration dates, security codes, bank account numbers, bank

routing numbers, and personal identification numbers, and personal information

about Rochelle Majors, including an address in Oklahoma. Handy denied any

knowledge of the notebooks or the pages contained in them.

      As Detective Wagenmann inventoried the items from the Impala, he began

to suspect that fraud was involved, so he contacted the Police Department’s fraud

detective to respond to the scene. Detective Wagenmann eventually contacted

federal authorities and handed over investigation of the case.




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                         II. PRETRIAL PROCEEDINGS

      We now turn to the procedural history in this case, including Handy’s not-

guilty plea, the district court’s denial of Handy’s pretrial suppression motion, and

Handy’s jury trial.

A.    Indictment and Not Guilty Plea

      In October 2012, a federal grand jury indicted Handy on one count of

possessing 15 or more unauthorized access devices, specifically social security

numbers, and five counts of aggravated identity theft. That same month, Assistant

Federal Public Defender Patrick Hunt was appointed to represent Handy, and she

entered pleas of not guilty to all of the charges.

B.    Handy’s Suppression Motion

      In December 2012, Handy filed a motion to suppress any evidence seized by

law enforcement on April 5, 2012, as well as any statements attributed to her on

that date. Handy requested an evidentiary hearing and argued that the burden was

on the government to show that an exception to the warrant requirement existed to

justify its warrantless search of the Impala.

C.    Evidentiary Hearing and Denial of Suppression Motion

      After the government responded in opposition to the suppression motion, the

district court conducted an evidentiary hearing on January 10 and 14, 2013.

During that hearing, Detective Wagenmann testified for the government,


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describing the events of April 5, 2012, as recounted above. The government also

called Kinnebrew to testify, and the defense called Scott to testify.

        On January 15, 2013, the district court issued an order denying Handy’s

motion to suppress. The district court found that the search of the Impala fell

within the inventory-search exception to the Fourth Amendment’s warrant

requirement because the Police Department’s policy on inventories of impounded

or towed cars left no room for discretion and applied to both police-directed and

privately requested tows. Finding Detective Wagenmann to be credible, the

district court rejected Handy’s argument that Detective Wagenmann had decided

on his own, absent instruction from Advantage, to impound the Impala as pretext

for searching the car. The district court specifically made a factual finding that,

after Advantage’s Heath told Wagenmann that Handy had not contacted

Advantage to extend her rental of the Impala, “Detective Wagenmann asked

whether Advantage wanted the car impounded, and Heath replied that it did.

Accordingly, Detective Wagenmann informed Heath that he would impound the

car.”

D.      Defense Requests for Continuances and Motion for Substitution of
        Counsel

        After the ruling in the suppression hearing, Handy’s case was reassigned

within the Federal Public Defender’s Office from Patrick Hunt, who left the office,

to Assistant Federal Public Defender Chantel Doakes. At a calendar call on
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January 24, 2013, Handy requested a one-week continuance to retain private

counsel. The district court granted the request and set the matter for a calendar call

on January 30, 2013.

      At the January 30, 2013, calendar call, Handy had yet to retain private

counsel, so the district court granted her request to continue the trial from

February 11, 2013, to April 1, 2013, so that Handy could retain private counsel.

      On March 22, 2013, Assistant Federal Public Defender Doakes filed a

motion for determination of counsel, requesting a hearing to determine whether

new counsel should be appointed. Doakes reported that, the day before, Handy

had “expressed an absence of trust and confidence in defense counsel and advised

. . . that she wants a new lawyer appointed to represent her in this matter.”

      On March 26, 2013, Handy filed pro se a motion to remove appointed

counsel, alleging a significant breakdown in communication and refusal on the part

of counsel to investigate or file meritorious motions to exclude evidence. Handy

claimed that attorney Doakes had shown a “persistent refusal to let [her] explain

facts critical to [her] defense, won’t explain strategic decisions or seek input. The

attorney client relationship has deteriorated so that the two parties cannot

effectively communicate.” Additionally, Handy alleged, “[attorney] Doakes has

not displayed any concern for my better interest in the case, and has continuously




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stated that I needed to take a plea bargain, before looking at physical evidence,

researching facts, or going through a possible defense for the defendant.”

E.    Hearing on March 27, 2013

      The district court held a hearing on the motions on March 27, 2013, at which

Handy addressed the court and generally repeated her allegations that Assistant

Federal Public Defender Doakes had refused to review the evidence in her case or

develop a defense.

      Attorney Doakes explained to the district court that, after refusing a

conditional plea negotiated with the government by attorney Hunt, Handy had

insisted from the time of the January 24 calendar call that she would be retaining

private counsel. Moreover, even after Handy told attorney Doakes on March 7 that

Handy would “stay with [the Public Defender’s] office,” Handy refused to provide

assistance to either Doakes or Doakes’s investigator for trial preparation and

instead continued to focus on the unsuccessful motion to suppress.

      The district court found that Handy’s allegations concerning attorney

Doakes were not credible, that Handy had not been cooperating with Doakes, that

nothing Handy said indicated that Doakes was not doing her job properly, and that

Handy simply was trying to delay the trial. The district court told Handy, “I am

not going to give you another attorney. You need to work with the attorney that

you have.”


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      The district court then held a calendar call for Handy’s case, and the

government stated that it had provided defense counsel oral notice that it intended

to introduce evidence of Handy’s unauthorized possession of credit cards.

Specifically, the evidence included the credit cards in Willie Donnell’s name found

in the Impala and testimony by Donnell that she had not authorized Handy to

possess the credit cards and that Handy always carried around a black bag that

Handy called her “money bag.” In a written notice filed later that day, the

government argued that the evidence was admissible either because (1) it was not

extrinsic to—and instead was inextricably intertwined with the other evidence of—

the charged offenses; or (2) it was admissible under Federal Rule of Evidence

404(b)(2) to demonstrate Handy’s knowing possession of the black backpack and

its contents and her intent to defraud.

      In light of this evidence, Handy’s defense counsel requested, and the district

court granted, a one-week continuance of the trial to April 10, 2013. On April 4,

2013, privately retained counsel entered a notice of appearance on behalf of

Handy.

              III. TRIAL, CONVICTIONS, AND SENTENCING

A.    Jury Trial

      During the two-day jury trial, Detective Wagenmann testified for the

government as to the above-described evidence found in the Impala during the


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inventory search. Detective Wagenmann also testified about Handy’s statements

disclaiming ownership or knowledge of many of the items. For example,

Detective Wagenmann explained that Handy generally claimed ownership of

“anything innocuous or non-incriminating” but denied knowledge of any “fraud-

related item” that contained someone else’s name.

       Willie Donnell, Handy’s great aunt, testified that Handy was living with her

as of April 5, 2012. However, Donnell never gave Handy permission to have

copies of her Florida identification card, letters to her from Wells Fargo, or credit

cards in her name, and never asked Handy to help her clear up an issue with her

bank. When shown the credit cards in her name found in the Impala, Donnell

testified that she had never before seen, or applied for, the cards.8

       Additionally, evidence was introduced concerning 17 of the 68 individuals

who were listed, along with their dates of birth and social security numbers, in one

of the notebooks found in Handy’s backpack. The evidence established that,

although the 17 individuals all were incarcerated throughout 2011 and did not earn

any wages that year, 2011 federal income tax returns for all 17 individuals were

filed claiming refunds of several thousand dollars each. The returns also

represented that the individuals had earned wages in 2011. All 17 returns had been

       8
         Handy did not object to this testimony by Donnell. Additionally, during the charge
conference, when the district court proposed omitting a Federal Rule of Evidence 404(b) limiting
instruction as not applicable, Handy stated that she had no objection.

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filed electronically, and several of the 17 returns were filed on the same day. The

Internal Revenue Service (“IRS”) was reviewing or questioning at least one of the

returns, which can occur when the withholding is disproportionate to the stated

income. 9

       The returns included that of Crystal Lambert, who testified that she was

incarcerated in Hernando Prison from 2008 to 2012. Although a 2011 tax return

for Lambert was filed claiming a refund of $9,872, Lambert testified that she did

not receive any wages from her prison job in 2011; she neither filed a tax return for

2011 nor authorized anyone to file a return on her behalf; she did not receive a tax

refund for 2011 from the IRS; and she did not recognize the address listed on the

return filed under her name. Moreover, Lambert did not recognize Handy and did

not know anyone with Handy’s name.

B.     Motion for Judgment of Acquittal and Verdicts

       At the close of the government’s case, Handy’s counsel moved orally for

judgment of acquittal, stating that the government had “failed to prove a prima

facie case that [Handy] was in possession of these Social Security numbers as well

as committed the crimes of aggravated identity theft.” Handy declined to offer

further argument on the motion, and the district court denied the motion.

       The jury found Handy guilty of all charges in the indictment.

       9
        Testimony established that the IRS uses the social security number provided with an
income tax return to verify the identity of the taxpayer.
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C.    Sentencing

      The presentence investigation report (“PSI”) recommended a base offense

level of six for Count One, the count of possessing 15 or more access devices,

pursuant to U.S.S.G. § 2B1.1(a)(2). The PSI added to that base offense level: (1) a

six-level increase because the loss amount was between $30,000 and $70,000,

pursuant to § 2B1.1(b)(1)(D); and (2) a four-level increase because the offense

involved more than 50 but fewer than 250 victims, pursuant to § 2B1.1(b)(2)(B).

As to the number of victims, the PSI noted that the inventory search of the Impala

revealed “a total of 73 Social Security numbers of relatives, incarcerated or

formerly incarcerated persons which defendant had in her possession. The

investigation continues as to the numerous ways the identifiers were fraudulently

used in various schemes. The government has been unable to pinpoint the

defendant’s exact involvement in these schemes.”

      Handy’s total adjusted offense level was 16. Based on this total offense

level and criminal history category of I, Handy’s advisory guidelines range for

Count One was 21 to 27 months’ imprisonment. Additionally, Counts Two

through Six, the aggravated identity theft counts, each carried a statutory two-year

term of imprisonment, to run consecutive to any other term of imprisonment,

pursuant to 18 U.S.C. § 1028A(a)(1), (b)(2).




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      The PSI further recommended a guidelines fine range of $5,000 to $50,000,

based on an offense level of 16, pursuant to U.S.S.G. § 5E1.2(c)(3), and noted that

the statutory maximum fine was $250,000, pursuant to 18 U.S.C. § 3571(b)(3). As

to whether a fine should be assessed, the PSI concluded that Handy had provided

insufficient information for the probation officer to make such a recommendation.

In particular, Handy had refused to sign any financial release forms and had

provided only limited financial information.

      Through an independent investigation, the probation officer was able to

verify the following about Handy’s financial situation: (1) she had two Wells

Fargo accounts, each with a $100 balance; (2) she owned a 2002 Cadillac Escalade

with an estimated value of between $6,340 and $10,070; (3) she had $2,000 in

credit card debt; and (4) she had no dependents. However, the probation officer

was unable to verify the following financial information reported by Handy:

(1) since 2009, she owned a business as a producer, rap artist, singer, and event

promoter, and earned between $70,000 and $100,000 annually; (2) from 2003 to

2006, she worked with a music group, earning between $40,000 and $150,000

annually; and (3) she had no business assets.

      Handy filed no objections to the PSI.

      At the sentencing hearing, after confirming that the parties had no objections

to the PSI, the district court adopted the factual statements and guideline


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calculations contained in the PSI. Before imposing a sentence, the district court

questioned Handy about her lack of cooperation in providing the probation officer

with financial information.

      Handy’s counsel stated that he had not properly advised Handy that the

probation officer would be visiting her in jail to question her concerning her

financial situation and that she needed to cooperate and be candid and forthcoming.

Moreover, defense counsel represented, Handy would more than likely be declared

indigent for purposes of her appeal and did not “have any funds in an offshore

account or anything like that.”

      Handy addressed the district court and stated that she was “hesitant to

cooperate” with the probation officer or sign a financial release form because she

“didn’t know what it was or who [the probation officer] really was,” as her

attorney had not advised her that the probation officer would be visiting the jail.

She also asked the district court for leniency in her sentence, repeatedly professing

her innocence and denying that she had committed any crimes.

      The district court sentenced Handy to a total 51-month sentence of

imprisonment, consisting of 27 months on Count One, followed by concurrent

sentences of 24 months on Counts Two through Six. In imposing the sentence, the

district court stated that it had considered the advisory guidelines range and all of

the 18 U.S.C. § 3553(a) factors, but it specifically discussed the nature of the


                                           22
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offenses, the history and characteristics of the defendant, and the need for the

sentence to reflect the seriousness of the offenses and afford adequate deterrence.

      As to these factors, the district court noted the “real identity fraud/identity

theft problem here in the Southern District of Florida”; the years it takes for

victims to “clear up” the issues caused by identify theft; and Handy’s continued

insistence that she was innocent despite overwhelming evidence presented at trial

of her guilt. The district court additionally noted that it had considered imposing

additional consecutive terms of imprisonment for Counts Two through Six but

decided against it because “51 months is enough but not more than required to

accomplish the purposes that Section 3553(a) wants for courts to try to accomplish

with a sentence.”

      The district court also imposed a $7,000 fine, stating:

      I know that she is sitting here right now and saying that she didn’t
      know that the probation officer was coming. But I expressly
      explained this to Ms. Handy after the verdict came back with the jury,
      and I asked her if she would cooperate and be truthful, and she said
      that she would, and she did not. So, again, I don’t think that that
      should inure to her benefit.

      You know, the [PSI], I guess, maybe some might consider that
      because it doesn’t have a finding with respect to how much money she
      has available to her, that the inference should be drawn to her benefit.
      But I disagree. I don’t think she should benefit from failing to
      cooperate, especially when she was earning $70,000 to $100,000 in
      the years before this occurred.




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       And, so, I am going to impose a fine and I’m going to impose a fine of
       ten percent of what she had been earning in the years before in one
       year, which would be $7,000.10

       Following the imposition of sentence, Handy herself summarily objected,

stating her belief that that “the book [was] being thrown at [her] . . . because . . .

[she] didn’t speak to or [she] declined to sign documents from a probation officer.”

The district court explained that “the sentence is not imposed because you did not

speak with the probation officer. That’s why the $7,000 fine is imposed, because I

have no way of ascertaining what your financial means are and I’m not going to

allow you to work that to your benefit. The sentence is imposed [on] behalf of the

harm that you inflicted on the victims by engaging in this crime . . . .” The district

court inquired whether any of the parties had any legal objections, and defense

counsel and the government responded in the negative.

       Handy timely appealed.

                               IV. MOTION TO SUPPRESS

       On appeal, defendant Handy contends that the district court erred in denying

her motion to suppress because, first, the court clearly erred in finding that

Detective Wagenmann had the authority to impound the Impala, and second,



       10
            Although the district court’s instructions to Handy to cooperate with the probation
officer are not in the record, the government’s attorney also represented at sentencing that, “prior
to . . . recessing in this matter following the trial, [the district court] did advise the defendant of
how the presentence investigation report would proceed, how that process would work, and the
Court advised the defendant here in open court to be cooperative with the probation officer.”
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Detective Wagenmann’s decision to impound and inventory the contents of the

Impala was not adequately guided by Police Department policies.

A.    Standard of Review

      In reviewing the district court’s denial of a motion to suppress, we review

the court’s findings of fact for clear error and its application of law to those facts

de novo. United States v. Yeary, 740 F.3d 569, 579 n.25 (11th Cir. 2014). We

construe all facts in the light most favorable to the party that prevailed in the

district court and afford substantial deference to a factfinder’s credibility

determinations. United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). We

accept the factfinder’s choice of whom to believe “unless it is contrary to the laws

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

factfinder could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749

(11th Cir. 2002) (quotation omitted). Thus, we defer to the district court’s factual

determinations unless the district court’s understanding of the facts is

“unbelievable.” Id. (quotation omitted).

B.    Inventory Searches

      The Supreme Court has held that inventory searches of legally impounded

vehicles, conducted pursuant to an established procedure but without a warrant, are

reasonable under the Fourth Amendment. South Dakota v. Opperman, 428 U.S.

364, 372, 96 S. Ct. 3092, 3098-99 (1976). The Supreme Court identified three


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distinct interests that justify the inventory search of a car upon impoundment:

(1) the protection of the owner’s property while it remains in police custody;

(2) the protection the police against claims or disputes over lost or stolen property;

and (3) the protection of the police from potential danger. Id. at 369, 96 S. Ct. at

3097. Because an inventory search is an exception to the Fourth Amendment’s

warrant requirement, the government has the burden of showing that the

requirements of the inventory search exception have been met. Sammons v.

Taylor, 967 F.2d 1533, 1543 (11th Cir. 1992) (Bivens action Fourth Amendment

claim).

      Because an “inventory search must not be a ruse for a general rummaging in

order to discover incriminating evidence,” the Supreme Court has held that “[t]he

individual police officer must not be allowed so much latitude that inventory

searches are turned into a purposeful and general means of discovering evidence of

crime.” Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990) (quotation

omitted). Thus, “standardized criteria or established routine must regulate the

opening of containers found during inventory searches.” Id. (citations omitted).

Although it is not the only permissible policy, a policy of “opening all containers




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. . . [is] unquestionably permissible.” Id. Moreover, “[t]he policy or practice

governing inventory searches should be designed to produce an inventory.” Id. 11

       Further, the validity of an inventory search of a car depends on the legality

of the decision to impound the car. See Sammons, 967 F.2d at 1543 (“If [a]

vehicle has been lawfully impounded, the law enforcement officer may conduct an

inventory search, including a search of closed containers, provided the search is

conducted pursuant to standardized criteria.”). The Supreme Court has explained

that a police officer’s decision to impound a car may involve discretion but must

be made according to standard criteria and on the basis of something other than

suspicion of evidence of criminal activity. See Colorado v. Bertine, 479 U.S. 367,

375, 107 S. Ct. 738, 743 (1987). “‘[T]he critical question . . . is not whether the

police needed to impound the vehicle in some absolute sense, or could have

effected an impoundment more solicitously, but whether the decision to impound

and the method chosen for implementing that decision were, under all the

circumstances, within the realm of reason.’” Sammons, 967 F.2d at 1543 (quoting

United States v. Rodriguez-Morales, 929 F.2d 780, 786 (1st Cir. 1991)).

       After reviewing the evidentiary record, we cannot say that the district court

erred in denying Handy’s motion to suppress. As an initial matter, viewing the
       11
         Additionally, “the scope of an inventory search may not exceed that necessary to
accomplish the ends of the inventory.” United States v. Khoury, 901 F.2d 948, 958 (11th Cir.),
modified on other grounds on denial of reh’g, 910 F.2d 713 (11th Cir. 1990). Here, Handy
challenges Detective Wagenmann’s decision to perform an inventory search and his authority to
do so, but not the scope of the search he performed.
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evidence in the light most favorable to the government, Detective Wagenmann’s

decision to impound the Impala was both based on established Police Department

procedure and reasonable under the Fourth Amendment. See Opperman, 428 U.S.

at 372, 96 S. Ct. at 3098-99. As to Police Department procedure, Detective

Wagenmann’s uncontroverted testimony demonstrated that it was the common

practice of the Police Department to impound overdue rental cars at the request of

rental companies. Moreover, the Police Department Policy Manual plainly

envisioned that police officers would impound some cars at the request of private

parties, as it requires police officers requesting a tow to state whether the tow is

“[p]olice directed or [based on a] private request.”

      As to reasonableness, Detective Wagenmann’s decision to impound the

Impala was “within the realm of reason” under the circumstances of this case. See

Sammons, 967 F.2d at 1543. In particular, Advantage, the Impala’s rightful

owner, had requested that Detective Wagenmann impound the car; Handy had no

continuing legitimate claim on the car because the rental contract had expired;

Handy’s credit card repeatedly had been declined for additional charges; and

Handy had altered the car with illegal window tinting. Thus, in light of these facts,

Detective Wagenmann reasonably exercised his discretion to impound the Impala

based on established Police Department practice. See Bertine, 479 U.S. at 375,

107 S. Ct. at 743.


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      We reject Handy’s argument that the district court clearly erred in finding

that Detective Wagenmann impounded the Impala at the request of Advantage and

not as pretext for searching the car based on suspicion of criminal activity. The

district court expressly found Detective Wagenmann to be credible. Contrary to

Handy’s suggestion, nothing in Heath’s notes contradicts Detective Wagenmann’s

testimony that Advantage, and not Wagenmann, requested that the Impala be

impounded. The statement in Heath’s notes that “Det[ective Wagenmann]

adv[ised] he’s going to impound the veh[icle]” does not necessarily imply that

Wagenmann was impounding the Impala upon his own initiative and not in

response to Heath’s request. And even if Detective Wagenmann misremembered

that he told Heath that he suspected that the Impala had been involved in a crime,

this did not render his testimony inconsistent or improbable on its face.

      Moreover, although Advantage manager Scott testified that he wished for

Heath to try to “bring the account up to current” by speaking to Handy and that

Heath said that “it was the police officer who wanted the car towed,” Scott neither

spoke directly with Detective Wagenmann nor heard Heath’s conversation with

Wagenmann. And even if Scott’s own normal practice was to allow overdue

renters to extend their contracts, security manager Kinnebrew’s uncontroverted

testimony established that Advantage’s corporate policy, at the very least,

permitted requesting the repossession of overdue rental cars when contacted by


                                         29
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police. In sum, the district court’s finding that Advantage requested the

impoundment is supported by evidence in this record, and we must defer to this

finding of fact. See Ramirez-Chilel, 289 F.3d at 749.

      We also conclude that, to the extent that Detective Wagenmann lawfully

impounded the Impala, he permissibly could conduct an inventory search of the

car, including a search of closed containers, according to standardized criteria. See

Sammons, 967 F.2d at 1543. Here, Detective Wagenmann’s inventory search was

guided both by standardized criteria provided in the Policy Manual and established

Police Department routine. See Wells, 495 U.S. at 4, 110 S. Ct. at 1635.

      Specifically, the Policy Manual clearly covered all towed conveyances,

stating that it was the Police Department’s policy “to safeguard and properly

document the contents of . . . towed conveyances.” Additionally, the Policy

Manual stated, “[t]o insure that liability does not attach for property located within

any vehicle, vessel or aircraft or any package/container, the contents of said

vehicle or package/container, whether locked, opened or closed, shall be

ascertained and inventoried” (emphasis added). As the Supreme Court has stated,

a policy of “opening all containers . . . [is] unquestionably permissible.” Wells,

495 U.S. at 4, 110 S. Ct. at 1635. Detective Wagenmann’s testimony also

indicated that it was normal Police Department procedure to search and inventory




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any vehicle that was being towed, even if it was being impounded at the request of

a private party and not for criminal conduct.

                    V. SUFFICIENCY OF THE EVIDENCE

      On appeal, defendant Handy argues that the district court erred in denying

her motion for judgment of acquittal because the evidence was insufficient to

support her convictions. As discussed below, Handy’s arguments lack merit.

A.    Standard of Review

      Ordinarily, we review de novo whether sufficient evidence supports a jury’s

verdict in a criminal trial. United States v. Maxwell, 579 F.3d 1282, 1299 (11th

Cir. 2009). However, we review arguments not raised before the district court only

for plain error. United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999).

Specifically as to sufficiency-of-the-evidence arguments, we have applied plain-

error review even when a defendant moved for a judgment of acquittal on

sufficiency-of-the-evidence grounds but failed to articulate at that time the specific

sufficiency-of-the-evidence claim later raised on appeal. Id. at 1064, 1068-69.

Under plain-error review, a defendant must show (1) error (2) that is plain and

(3) that affected her substantial rights. United States v. Turner, 474 F.3d 1265,

1276 (11th Cir. 2007). Even if the defendant meets these three conditions, we may

exercise our discretion to reverse only if “the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotation omitted).


                                           31
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      In reviewing the sufficiency of the evidence, we take the evidence in the

light most favorable to the government, resolve any conflicts in favor of the

government, and draw all reasonable inferences that tend to support the

government’s case. Maxwell, 579 F.3d at 1299. “Evidence is sufficient to support

a conviction if a reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt.” Id. (quotation omitted). The defendant, in

rebutting the government’s evidence, may not simply put forth a reasonable

hypothesis of innocence, as the issue is not whether a jury reasonably could have

acquitted but whether it reasonably could not have found guilt beyond a reasonable

doubt. Id.

B.    Unauthorized Access Devices

      Count One charges a violation of 18 U.S.C. § 1029(a)(3), possessing 15 or

more unauthorized access devices. Section 1029(a)(3) prohibits possessing,

“knowingly and with intent to defraud[,] . . . fifteen or more devices which are

counterfeit or unauthorized access devices . . . if the offense affects interstate or

foreign commerce.” The statute defines “unauthorized access device” as “any

access device that is lost, stolen, expired, revoked, canceled, or obtained with

intent to defraud.” 18 U.S.C. § 1029(e)(3). Counts Two through Six charge a

violation of 18 U.S.C. § 1028A(a)(1), aggravated identity theft. Section 1028A

provides that “[w]hoever, during and in relation to,” inter alia, the felony of


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possessing 15 or more unauthorized access devices, “knowingly transfers,

possesses, or uses, without lawful authority, a means of identification of another

person shall, in addition to the punishment provided for such felony, be sentenced

to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1), (c)(4).

       On appeal, Handy does not dispute that social security numbers qualify as

access devices or that her offense affected interstate commerce. 12 Handy has not

shown error, let alone plain error, in the denial of her motion for judgment of

acquittal. Handy argues that the evidence was insufficient to support her

convictions under § 1029(a)(3) and § 1028A(a)(1) because the evidence did not

establish that her possession of the social security numbers was unauthorized or

that she used the social security numbers to file unauthorized tax returns.

       As to Handy’s § 1029(a)(3) conviction in Count One, viewing the evidence

in the light most favorable to the government, we conclude that the evidence

showed, at the very least, that Handy possessed 17 social security numbers that

were obtained with the intent to defraud. See 18 U.S.C. § 1029(e)(3).

Specifically, one of the notebooks in Handy’s backpack contained the social

security numbers and other personal identifying information of 17 incarcerated

individuals, and a reasonable jury could infer from the evidence we have recounted

above, including the testimony of Crystal Lambert, that Handy possessed these

       12
        Section 1029 defines “access device” as, in relevant part, any “personal identification
number.” 18 U.S.C. § 1029(e)(1).
                                               33
               Case: 13-13232        Date Filed: 01/30/2015       Page: 34 of 44


social security numbers and other information without authorization and with the

fraudulent intent to illegally obtain income tax refunds.

       As to Handy’s § 1028A(a)(1) convictions in Counts Two through Six, this

evidence likewise was sufficient for a reasonable jury to infer that Handy used

each of the social security numbers charged in Counts Two through Six to file false

income tax returns. See 18 U.S.C. § 1028A(a)(1). Finally, the jury could

reasonably conclude, based on Lambert’s testimony and the associated prisoner

identification numbers, that these social security numbers belonged to other

persons.

                                  VI. 404(B) EVIDENCE

       Defendant Handy contends that the district court plainly erred in admitting

evidence of other crimes found in the Impala, specifically, the credit cards in

Willie Donnell’s name and testimony by Donnell that she had not applied for the

cards or authorized Handy to possess them. 13

       Federal Rule of Evidence 404(b) provides:

       Evidence 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 the character. . . . This evidence may
       be admissible for another purpose, such as proving motive,

       13
          We decline to consider Handy’s additional argument that the district court plainly erred
in failing to sua sponte give a Federal Rule of Evidence 404(b) limiting instruction because
Handy waived any right to a limiting instruction by affirmatively stating during the charge
conference that she had no objection to the district court’s suggestion not to give a Rule 404(b)
instruction. See United States v. Fulford, 267 F.3d 1241, 1247 (11th Cir. 2001).
                                                34
             Case: 13-13232     Date Filed: 01/30/2015    Page: 35 of 44


      opportunity, intent, preparation, plan, knowledge, identity, absence of
      mistake, or lack of accident. . . .

Fed. R. Evid. 404(b). We use a three-part test to determine whether other bad acts

are admissible under Rule 404(b): (1) “the evidence must be relevant to an issue

other than the defendant’s character”; (2) “the act must be established by sufficient

proof to permit a jury finding that the defendant committed the extrinsic act”; and

(3) “the probative value of the evidence must not be substantially outweighed by

its undue prejudice.” United States v. McNair, 605 F.3d 1152, 1203 (11th Cir.

2010) (quotation omitted).

      However, evidence of criminal activity other than the charged offense is not

extrinsic under Rule 404(b) if (1) the uncharged offense arose out of the same

transaction or series of transactions as the charged offense, (2) the evidence is

necessary to complete the story of the crime, or (3) the evidence is inextricably

intertwined with the evidence regarding the charged offense. United States v.

McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).

      We conclude that the district court did not plainly err in admitting the

evidence at issue here because the evidence was not extrinsic under Rule 404(b)

but rather was inextricably intertwined with the evidence of the charged offenses.

Even if the evidence was extrinsic and within the scope of Rule 404(b), we would

conclude that the evidence nonetheless was admissible. First, the evidence was

relevant to show Handy’s knowing possession of the items in the Impala and her
                                          35
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fraudulent intent. Second, we are not persuaded by Handy’s argument that there

was insufficient proof that she knowingly possessed the credit cards in Donnell’s

name, as the cards were found in Handy’s rental car intermingled with items

bearing Handy’s name. Finally, we conclude that the evidence’s probative value

substantially outweighed any undue prejudice.

                     VII. SUBSTITUTION OF COUNSEL

      Defendant Handy further argues on appeal that the district court should have

granted her motion for appointment of substitute counsel because the record

demonstrates a complete breakdown in communication between herself and

Assistant Federal Public Defender Doakes in the weeks leading up to trial.

      We review for an abuse of discretion the district court’s denial of a motion

for new counsel, considering: “1) the timeliness of the motion; 2) the adequacy of

the court’s inquiry into [the] merits of the motion; and 3) whether the conflict was

so great that it resulted in a total lack of communication between the defendant and

[her] counsel thereby preventing an adequate defense.” United States v. Calderon,

127 F.3d 1314, 1343 (11th Cir. 1997).

      Although a defendant has a right to counsel, she does not have the

unqualified right to the appointed counsel of her choice. United States v. Garey,

540 F.3d 1253, 1263 (11th Cir. 2008) (en banc). Accordingly, an indigent

defendant has no right “to demand a different appointed lawyer except for good


                                         36
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cause.” Id. (quotation omitted). Good cause for substitution of counsel exists

where there is “a fundamental problem, such as a conflict of interest, a complete

breakdown in communication or an irreconcilable conflict which leads to an

apparently unjust verdict.” Id. (quotation omitted). Because good cause for

substitution of counsel cannot be solely based on a defendant’s perception, a

defendant’s general loss of confidence or trust in his counsel, standing alone, is not

sufficient. Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985).

      Here, we find no abuse of discretion in the district court’s denial of Handy’s

motion for substitution of counsel. As an initial matter, with regard to the

timeliness of the motion, Handy filed the motion a week before the scheduled trial

and after she already had received a two-month continuance to retain private

counsel. Cf. Calderon, 127 F.3d at 1343. Moreover, the district court held a

hearing on the motion in which it conducted a thorough inquiry into the merits of

Handy’s motion, and Handy was permitted to speak at length concerning the

alleged disagreements between herself and attorney Doakes. See id. Finally, we

agree with the district court that any disagreement between Handy and attorney

Doakes did not rise to the level of good cause for substitution of appointed counsel.

See Garey, 540 F.3d at 1263; Calderon, 127 F.3d at 1343. In particular, we defer

to the district court’s findings that Handy’s allegations concerning attorney Doakes

were not credible, that any breakdown in communication stemmed from Handy’s


                                          37
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refusal to cooperate with Doakes, and that Handy simply was trying to delay the

trial.

                            VIII. SENTENCING ISSUES

A.       Number of Victims

         Relying on United States v. Hall, 704 F.3d 1317 (11th Cir. 2013), defendant

Handy argues that the district court plainly erred in applying a four-level

enhancement under U.S.S.G. § 2B1.1(b)(2)(B) based on a finding that the offense

involved between 50 and 250 victims because the government’s evidence showed

only that 17 of the social security numbers found in her possession were actually

used.

         We review objections to sentencing calculation issues raised for the first

time on appeal for plain error. United States v. Bennett, 472 F.3d 825, 831 (11th

Cir. 2006). “It is the law of this circuit that, at least where the explicit language of

a statute or rule does not specifically resolve an issue, there can be no plain error

where there is no precedent from the Supreme Court or this Court directly

resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.

2003). Moreover, in plain-error review, unlike in harmless-error review, “the

defendant bears the burden of persuasion with respect to prejudice or the effect on

substantial rights.” United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir.

2003). “A substantial right is affected if the appealing party can show that there is


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a reasonable probability that there would have been a different result had there

been no error.” Bennett, 472 F.3d at 831-32.

       Section 2B1.1(b)(2) calls for a two-level increase to a defendant’s base

offense level if her offense involved ten or more victims, but calls for a four-level

increase if her offense involved more than 50, but fewer than 250, victims.

U.S.S.G. § 2B1.1(b)(2)(A), (B). In cases such as this, involving “means of

identification,”14 the relevant Guidelines commentary defines a “victim” as

including “any individual whose means of identification was used unlawfully or

without authority.” U.S.S.G. § 2B1.1 cmt. n.4(E).

       In Hall, we held, as a matter of first impression, that the mere transfer of

unauthorized identifying information is not equivalent to the actual use of the

identifying information for enhancement purposes based on the number of victims

under § 2B1.1(b)(2). 704 F.3d at 1323. In Hall, the defendant, an office assistant

in a doctor’s office, provided her co-conspirators with the personal identifying

information of 141 patients via text messages, receiving $200 in compensation. Id.

at 1319. In turn, the defendant’s co-conspirators used at least 12 of the patients’

personal identifying information to obtain fraudulent credit cards. Id. At

sentencing, over the defendant’s objection, the district court applied the four-level
       14
          “Means of identification” has the meaning given by 18 U.S.C. § 1028(d)(7), see
U.S.S.G. § 2B1.1 cmt. n.1, and includes “any name or number that may be used, alone or in
conjunction with any other information, to identify a specific individual, including any . . . name,
social security number, date of birth, [or] official State or government issued driver’s license or
identification number,” 18 U.S.C. § 1028(d)(7).
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enhancement under § 2B1.1(b)(2)(B) under the theory that the intentional transfer

of all 141 patients’ information in exchange for consideration constituted actual

use pursuant to that provision. Id. at 1320.

      On appeal, we disagreed, concluding that “the guideline, its commentary,

and application notes indicate that the mere transfer of unauthorized identifying

information is not the equivalent to the actual use of the identifying information for

a fraudulent purpose.” Id. at 1323. We noted the differing plain meanings of the

words “use” and “transfer,” and observed that the Sentencing Commission

elsewhere in § 2B1.1 employed the phrase “transfer or use,” suggesting that the

Commission intended “transfer” and “use” each to have a particular,

nonsuperfluous meaning. Id. at 1321-22. Because “the plain language of the

sentencing guideline at issue [did] not apply to [the defendant’s] mere sale or

transfer of the patients’ identifying information,” the appropriate enhancement was

a two-level increase under § 2B1.1(b)(2)(A) for ten or more victims because “the

purpose of the conspiracy was realized when the conspirators used the 12 patients’

identifying information to obtain the fraudulent credit cards.” Id. at 1323.

      In this case, we cannot say that the district court committed plain error in

applying the four-level enhancement under § 2B1.1(b)(2)(B) for more than 50

victims to Handy’s base offense level. The PSI stated that 73 social security

numbers were found in Handy’s possession and that, although the government’s


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investigation was ongoing, “the identifiers were fraudulently used in various

schemes.” Handy failed to object to this factual statement in the PSI, and thus, she

is deemed to have admitted it. See Bennett, 472 F.3d at 833-34; United States v.

Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (holding that a “defendant’s failure to

object to conclusory statements in the PSI renders those statements undisputed and

permits the sentencing court to rely upon them without error even if there is an

absence of supporting evidence”). To the extent that the 73 individuals’ social

security numbers were “used” in fraudulent schemes, the individuals clearly

qualified as “victims” for purposes of § 2B1.1(b)(2). See U.S.S.G. § 2B1.1 cmt.

n.4(E).

B.    The $7,000 Fine

      Defendant Handy’s final argument on appeal is that the district court clearly

erred in imposing a $7,000 fine because the court did not consider the factors

provided in U.S.S.G. § 5E1.2(d) in setting the amount of the fine and instead based

the fine merely on Handy’s refusal to cooperate with the probation officer.

      We review the district court’s imposition of a fine for clear error. United

States v. Long, 122 F.3d 1360, 1366 (11th Cir. 1997). The Sentencing Guidelines

provide that the district court “shall impose a fine in all cases, except where the

defendant establishes that he is unable to pay and is not likely to become able to

pay any fine.” U.S.S.G. § 5E1.2(a). Thus, the burden is on the defendant to prove


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her inability to pay a fine. McNair, 605 F.3d at 1232. If a defendant establishes

that she is unable to pay a fine, the district court may waive the fine or impose a

lesser fine. U.S.S.G. § 5E1.2(e).

      Once a district court decides that a fine is appropriate, it must consider the

following factors in determining the amount of the fine:

      (1) the need for the combined sentence to reflect the seriousness of
          the offense (including the harm or loss to the victim and the gain
          to the defendant), to promote respect for the law, to provide just
          punishment and to afford adequate deterrence;

      (2) any evidence presented as to the defendant’s ability to pay the
          fine (including the ability to pay over a period of time) in light of
          [her] earning capacity and financial resources;

      (3) the burden that the fine places on the defendant and [her]
          dependents relative to alternative punishments;

      (4) any restitution or reparation that the defendant has made or is
          obligated to make;

      (5) any collateral consequences of conviction, including civil
          obligations arising from the defendant’s conduct;

      (6) whether the defendant previously has been fined for a similar
          offense;

      (7) the expected costs to the government of any term of probation, or
          term of imprisonment and term of supervised release imposed;
          and

      (8) any other pertinent equitable considerations.

U.S.S.G. § 5E1.2(d).



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       We do not require a district court to make specific findings for each factor as

long as the record reflects the district court’s consideration of the pertinent factors

prior to imposing the fine. McNair, 605 F.3d at 1233. Ultimately, the record must

contain sufficient information with respect to the factors to permit a reviewing

court to conclude that the district court did not clearly err in imposing or setting the

amount of the fine. United States v. Khawaja, 118 F.3d 1454, 1459 (11th Cir.

1997). If the PSI presented information with respect to the factors, and the district

court reviewed the PSI before imposing the fine, we “infer without hesitation” that

the district court considered the pertinent factors before imposing the fine. Id.

       We conclude that the district court did not clearly err in imposing the $7,000

fine. 15 As to whether she was able to pay a fine, Handy does not dispute that she

never signed any financial release forms. Moreover, at sentencing, Handy still

failed to present any evidence concerning her finances to show her inability to pay

a fine. See McNair, 605 F.3d at 1232. Indeed, according to her own statements

reported in the PSI, Handy had the earning potential of between $70,000 to

$100,000 per year based on her average annual income since 2009, suggesting her

ability to pay a fine.




       15
         Because we find no error, plain or otherwise, we do not address the government’s
contention that plain-error review applies despite Handy’s own objection following the district
court’s imposition of sentence.
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      As to the amount of the fine, the record clearly contains sufficient

information to reflect the district court’s consideration of the pertinent § 5E1.2(d)

factors prior to setting the fine. See McNair, 605 F.3d at 1233. On appeal, Handy

argues that the district court relied primarily on Handy’s refusal to cooperate with

the probation officer in setting the fine. The record, however, demonstrates that

the district court either specifically discussed or considered (through its review of

the PSI) the pertinent § 5E1.2(d) factors. See Khawaja, 118 F.3d at 1459. Indeed,

the PSI, which the district court reviewed and adopted, reported facts relevant to

the § 5E1.2(d) factors, including that Handy had no dependents, that she owned a

business, and that she had earned annual incomes reaching six figures in the

decade prior to sentencing. In addition, in imposing Handy’s sentence, which

included the fine, the district court explicitly addressed the seriousness of the

offenses and the need to provide adequate deterrence to Handy. See U.S.S.G.

§ 5E1.2(d)(1). The district court also discussed Handy’s ability to pay the fine in

light of her earning capacity and financial resources, setting the fine at ten percent

of the low end of her average annual income since 2009. See U.S.S.G.

§ 5E1.2(d)(2).

                                IX. CONCLUSION

      For the foregoing reasons, we affirm Handy’s convictions and sentences.

      AFFIRMED.


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