           Case: 17-11386   Date Filed: 03/02/2018   Page: 1 of 10


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-11386
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:15-cr-00044-MW-CAS-2

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus

JORGE MALDONADO,
JENNIFER MALDONADO,

                                                        Defendants-Appellants.
                       ________________________

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

                             (March 2, 2018)

Before TJOFLAT, WILSON, and NEWSOM, Circuit Judges.

PER CURIAM:
                Case: 17-11386       Date Filed: 03/02/2018       Page: 2 of 10


       Jorge Maldonado and his daughter, Jennifer Maldonado, were partners in a

tax fraud scheme, for which they were convicted of multiple offenses.1 They now

appeal their conviction for aggravated identify theft, alleging that the district court

erred by declining to adopt their requested jury instruction. Mr. Maldonado also

appeals his 84-month sentence, arguing that the district court: (1) based his

sentence on information that was not disclosed to him prior to sentencing; (2)

relied on a false assumption that he had committed statutory rape; and (3)

improperly enhanced his offense level for using sophisticated means.

       Upon thorough review of the briefs and the record, we find that the

Maldonados’ proposed instruction was not a correct statement of Eleventh Circuit

law, that the district court did not err in determining Mr. Maldonado’s sentence,

and that the sophisticated means enhancement was appropriate. Accordingly, we

affirm the Maldonados’ conviction and Mr. Maldonado’s sentence.

                                                I.

       We review a district court’s refusal to give a requested jury instruction for

abuse of discretion. United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir.

2003). A court abuses its discretion if the requested jury instruction: “(1) was

correct; (2) was not substantially covered by the charge actually given; and (3)

1
  These included: one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. §
1349; eleven counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; two counts of theft of
United States money, in violation of 18 U.S.C. §§ 641 and 2; and two counts of aggravated
identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2.
                                                2
              Case: 17-11386      Date Filed: 03/02/2018    Page: 3 of 10


dealt with some point in the trial so important that failure to give it seriously

impaired the defendant’s ability to conduct his defense.” Id. at 1222–23.

      Ordinarily, we review a district court’s application of the guidelines de novo

and its factual findings for clear error. United States v. Gupta, 572 F.3d 878, 887

(11th Cir. 2009). But where, as is the case here, the defendant failed to object to

the procedural reasonableness of his sentence below, we review for plain error.

United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). To

demonstrate plain error, the defendant must show that (1) there was error, (2) it

was plain, (3) it affected his substantial rights, and (4) it seriously affected the

fairness, integrity, or public reputation of judicial proceedings. Id. We review the

district court’s determination that the offense involved sophisticated means for

clear error. United States v. Feaster, 798 F.3d 1374, 1380 (11th Cir. 2015).

                                           II.

      The aggravated identity theft statute provides, in pertinent part:

             Whoever, during and in relation to any felony violation
             enumerated in [§ 1028A(c)], 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). “Thus, to support a conviction under § 1028A(a)(1), the

government must prove that the defendant: (1) knowingly transferred, possessed,

or used; (2) the means of identification of another person; (3) without lawful
                                            3
              Case: 17-11386     Date Filed: 03/02/2018   Page: 4 of 10


authority; (4) during and in relation to a felony enumerated in § 1028A(c).” United

States v. Hurtado, 508 F.3d 603, 606–07 (11th Cir. 2007) (per curiam) (footnote

omitted), abrogated on other grounds by Flores-Figueroa v. United States, 556

U.S. 646, 129 S. Ct. 1886 (2009). In Flores-Figueroa, the Supreme Court clarified

that Section 1028A(a)(1) “requires the Government to show that the defendant

knew that the means of identification at issue belonged to another person.” Flores-

Figueroa, 556 U.S. at 657, 129 S. Ct. at 1894.

      The Maldonados argue that the third element of the offense, “without lawful

authority,” is ambiguous. According to their interpretation, it refers to whether the

defendants used a means of identification of another person without her consent,

not whether it was used during and in relation to one of the enumerated felonies.

In other words, a consenting accomplice cannot serve as “another person” under

the statute. And because they put forth evidence at trial that their “victims” were

really consenting accomplices, they claim that the failure to deliver their

instruction seriously impaired their ability to conduct a defense.

      The district court did not abuse its discretion in refusing to give the

Maldonados’ instruction, because the instruction did not accurately state the law.

See Yeager, 331 F.3d at 1222–23. The Maldonados’ interpretation of

§ 1028A(a)(1) butts heads with our precedent. While it is true that use of another

person’s identity without her consent can constitute use “without lawful authority,”


                                          4
              Case: 17-11386     Date Filed: 03/02/2018   Page: 5 of 10


we have not interpreted the statute so narrowly as to exclude other meanings of

“without lawful authority,” such as use of another’s means of identification for an

unlawful purpose. See United States v. Zitron, 810 F.3d 1253, 1260 (11th Cir.

2016) (per curiam) (“The government established the ‘without lawful authority’

element in two ways—with testimony from Jordan that Zitron did not have

permission to use his identity, and with evidence that Zitron used Jordan’s means

of identification for an unlawful purpose.”). This interpretation accords with the

majority of our sister circuits, which also have refused to limit the “without lawful

authority” element to the issue of consent. See, e.g., United States v. Ozuna-

Cabrera, 663 F.3d 496, 499 (1st Cir. 2011) (“[R]egardless of how the means of

identification is actually obtained, if its subsequent use breaks the law—

specifically, during and in relation to the commission of a crime enumerated in

subsection (c)—it is violative of § 1028A(a)(1).”); United States v. Reynolds, 710

F.3d 434, 436 (D.C. Cir. 2013); United States v. Retana, 641 F.3d 272, 275 (8th

Cir. 2011); United States v. Mobley, 618 F.3d 539, 547–48 (6th Cir. 2010); United

States v. Abdelshafi, 592 F.3d 602, 608 (4th Cir. 2010). The district court correctly

refused the Maldonados’ instruction, and we affirm their conviction accordingly.

                                         III.

      We now turn to Mr. Maldonado’s claim that his sentence was procedurally

and substantively unreasonable. First, he alleges that the district court relied upon


                                          5
              Case: 17-11386     Date Filed: 03/02/2018    Page: 6 of 10


undisclosed information from Jennifer Maldonado’s sealed PSI. Second, he claims

that the district court relied upon an erroneous assumption that he committed

statutory rape. Third, he argues that the district court clearly erred in applying the

sophisticated means enhancement.

      The district court commits reversible procedural error by “failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “The findings

of fact of the sentencing court may be based on evidence heard during trial, facts

admitted by a defendant’s plea of guilty, undisputed statements in the [PSI], or

evidence presented at the sentencing hearing.” United States v. Wilson, 884 F.2d

1355, 1356 (11th Cir. 1989). But the court must “give to the defendant and an

attorney for the government a written summary of—or summarize in camera—any

information excluded from the presentence report under Rule 32(d)(3) on which

the court will rely in sentencing, and give them a reasonable opportunity to

comment on that information.” Fed. R. Crim. P. 32(i)(1)(B).

      The Sentencing Guidelines provide for a two-level enhancement to a

defendant’s base offense level where the offense involved sophisticated means and

“the defendant intentionally engaged in or caused the conduct constituting


                                           6
              Case: 17-11386     Date Filed: 03/02/2018   Page: 7 of 10


sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). The Section 2B1.1

Application Notes define sophisticated means as “especially complex or especially

intricate offense conduct pertaining to the execution or concealment of an offense.”

Id. cmt. n.9(B). This includes, for example, “hiding assets or transactions, or both,

through the use of fictitious entities [or] corporate shells.” Id. We have held that

the enhancement was appropriate where an offense involved the creation of

fraudulent mortgage documents, fake title corporations, use of straw buyers, and

improper diversion of U.S. mail, United States v. Rodriguez, 751 F.3d 1244, 1258

(11th Cir. 2014); where an offense involved multiple companies and repetitive,

coordinated activities to conceal it, United States v. Bane, 720 F.3d 818, 826–27

(11th Cir. 2013); and where a defendant hid assets and transactions through a straw

man or campaign fund, United States v. Campbell, 491 F.3d 1306, 1316 (11th Cir.

2007).

      Mr. Maldonado’s first claim arises out of an exchange between his lawyer

and the district court at the sentencing hearing. In response to a request for a

downward variance based on Mr. Maldonado’s devotion as a father, the district

court commented that “the PSR and the attachments related to Jennifer Maldonado

paint a very different picture,” and that “the children claim he turned a blind eye

when their stepmother, his wife, was abusing the children.” Mr. Maldonado now




                                          7
                Case: 17-11386        Date Filed: 03/02/2018        Page: 8 of 10


argues that it was error for the district court to rely upon this information, which

was not provided to him prior to sentencing.

       We find that the district court did not plainly err. As an initial matter, the

record does not convince us that the district court relied upon any undisclosed

information in determining Mr. Maldonado’s sentence. At the conclusion of the

sentencing hearing, the district court carefully explained its sentencing decision,

recognizing Mr. Maldonado’s commitment to his family, in addition to his service

in the military, his clean criminal record, and his difficult upbringing, as mitigating

factors warranting a downward variance ten months below the bottom of the

guideline range. 2 Furthermore, the information at issue, including the abuse of the

children by their stepmother, was the subject of witness testimony at trial; thus, the

district court would not have been precluded from considering these facts at

sentencing. See Wilson, 884 F.2d at 1356 (“The findings of fact of the sentencing

court may be based on evidence heard during trial . . . .”). And even if we assume,

arguendo, that the district court should have disclosed the information referenced

from Jennifer Maldonado’s PSI, we are not convinced that a failure to do so, under

these circumstances, affected Jorge Maldonado’s substantial rights or seriously



2
  The district court stated: “Mr. Maldonado did not abandon his children when the various
mothers and so forth left, but instead he stood by. I take all of that into account as to a complete
picture of who Mr. Maldonado is, where he’s come from, and what he’s done in spite of the fact
that he had to overcome great hurdles.”
                                                 8
              Case: 17-11386      Date Filed: 03/02/2018    Page: 9 of 10


affected the fairness, integrity, or public reputation of his proceedings.

Vandergrift, 754 F.3d at 1307.

      Turning to Mr. Maldonado’s second argument, we find the claim that the

district court relied upon a belief that he was a statutory rapist to be entirely

unsupported by the record. Mr. Maldonado’s claim arises out of an in camera

discussion about a trial witness with whom Mr. Maldonado had a sexual

relationship in Puerto Rico while she was under the age of 18. Mr. Maldonado’s

affair with the witness came up again at sentencing, where the parties disputed its

legality. The district court emphasized: “I’m not here to sentence Mr. Maldonado

because he allegedly had sexual relations with somebody. . . . I’m assuming for

purposes of this sentencing proceeding, that the sexual relationship didn’t start

until after [the witness] was 18; let me make that crystal clear.” Contrary to Mr.

Maldonado’s claim, the record demonstrates that the district court put aside the

issue of the legality of his sexual relationship with the witness when determining

his sentence, which we find to be procedurally reasonable.

      Likewise, we find that the district court reasonably imposed the

enhancement for using sophisticated means. The record demonstrates that Mr.

Maldonado created fake powers of attorney and transposed legitimate notary seals

onto fake documents; he obtained personal identifying information from multiple

third parties; he used third parties to cash fraudulent checks in a different


                                            9
             Case: 17-11386    Date Filed: 03/02/2018    Page: 10 of 10


jurisdiction; and he used legitimate tax preparation businesses to perpetrate and

conceal the fraud. We find that the execution and concealment of the tax fraud

involved sufficiently complex and intricate conduct to justify the sophisticated

means enhancement, U.S.S.G. § 2B1.1 cmt. n.9(B), and, therefore, we affirm Mr.

Maldonado’s sentence.

                                        IV.

      The district court did not err in refusing to give the Maldonados’ requested

jury instruction, nor did it err in fashioning Mr. Maldonado’s sentence.

Accordingly, we affirm.


AFFIRMED.




                                         10
