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                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-10297
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:15-cr-00126-CEM-KRS-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

SANDRA MILENA NIEVES,
EILEEN SANTOS,

                                                        Defendants-Appellants.

                       ________________________

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

                            (November 10, 2016)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Eileen Santos and Sandra Nieves were convicted as participants in a

counterfeit currency conspiracy. They both challenge their convictions, raising

numerous issues regarding the district court’s evidentiary rulings, its instructions to

the jury, and the sufficiency of the evidence. Nieves also challenges her sentence.


                                                 I.


      A grand jury indicted Santos, Nieves, Ramon Rodriguez, and Carlos Fuentes

as participants in a counterfeit currency scheme. Count One charged all four

defendants with conspiracy to pass or attempt to pass or possess counterfeit

currency. Count Two charged all four with substantively possessing counterfeit

currency. Count Three charged Fuentes alone with passing or attempting to pass

counterfeit currency. And Count Four charged Nieves alone with passing or

attempting to pass counterfeit currency. All of those charges arose under 18

U.S.C. § 472.

      Rodriguez and Fuentes reached plea deals with the government, while

Santos and Nieves proceeded to trial. At Santos and Nieves’ joint trial, Rodriguez

testified that he learned about the scheme, which already involved Santos and

Nieves, from Fabian Ortiz and his father Jorge Ortiz.1 He testified that Fabian and

Nieves hid counterfeit currency in the lining of suitcases in order to smuggle it into
      1
          To avoid confusion we will refer to the Ortizes by their first names.
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this country from Colombia. Then the group would go to various stores and buy

low-cost items with counterfeit $100 bills, receiving real money as change for their

purchases. In addition to the counterfeit currency, the group would carry authentic

$100 bills and withdrawal receipts from legitimate banks. That way, if a group

member got caught, he or she could say that it was an innocent mistake and that the

bad bill had come from a bank.

       Rodriguez testified that at one point he traveled across the East Coast with

Santos, Nieves, Fuentes, and Jorge, exchanging counterfeit currency along the

way. 2 As they became more experienced, they realized that it was especially easy

to pass counterfeit currency at Target stores. Santos even joked that Target “was

an easy target.”

       At trial Santos and Nieves attempted to introduce, for impeachment

purposes, evidence of Rodriguez’s prior convictions for a slew of crimes including

grand theft, possession of cocaine, and possession of a fictitious license. The

district court sustained the government’s motion to exclude the convictions. The

result was that on Rodriguez’s cross-examination Nieves and Santos impeached

him not with his prior convictions but by having him confirm that he was testifying




       2
         Rodriguez’s fiancée also came along, but she was never charged with passing
counterfeit currency.
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as part of a plea deal and by asking him about discrepancies between his testimony

and his initial statements to the police.

       The government also called Fuentes as a witness. He stated that he had

personally seen Santos and Nieves pass counterfeit currency multiple times on

their East Coast trip. When he tried to testify that Jorge had told him that Santos

and Nieves had gone to Colombia to collect counterfeit bills, Santos objected. She

argued that admitting Jorge’s out-of-court statement implicating her would violate

Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), because Jorge was

not available for cross-examination.3 The court overruled that objection and

allowed Fuentes to repeat Jorge’s statement.

       In addition, the government offered circumstantial evidence that Santos and

Nieves had passed or possessed counterfeit currency. It presented security camera

footage of Santos visiting multiple Target stores within the span of an hour during

the East Coast trip. And it offered bank records showing that Nieves visited the

same cities as the others during the East Coast trip, and that she had traveled to

Colombia.

       As evidence of its charge that Nieves individually had passed or attempted

to pass counterfeit currency (Count Four), the government called Joseph Aguilera,

       3
       Fabian and Jorge were unavailable to testify because they had been deported to
Colombia.
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a police officer with the Casselberry (Florida) Police Department. He testified that

he had been dispatched to a Casselberry Walmart because Nieves had attempted to

pass a counterfeit bill. When he arrived at the Walmart he took a statement from

Nieves, who claimed that the bad bill had come from her bank. During his

investigation at the Walmart, the Walmart manager gave Aguilera the counterfeit

bill, and Aguilera placed and sealed it in a signed evidence bag. During Aguilera’s

direct examination at trial, the government proffered that bill as evidence, and the

court admitted it over Nieves’ objection. The government did not call the Walmart

cashier who had received the counterfeit bill from Nieves.

      Another government witness, Agent Jeffrey Seeger of the United States

Secret Service, described his investigation of the counterfeit currency ring. He

explained that an undercover buy from Fabian and searches of Fabian’s car, motel

room, and suitcases resulted in the seizure of over $280,000 in counterfeit

currency. He also testified that the serial number on the Casselberry Walmart

counterfeit bill matched the serial number of several counterfeit bills seized during

those searches.

      After the government’s case in chief, Santos testified in her own defense.

She stated that she had thought the East Coast trip had an innocent purpose and

that she didn’t know that the others were passing counterfeit bills. Nieves’ son and


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ex-boyfriend also testified; both stated that Nieves was never a member of any

counterfeit currency ring.

      After both sides rested, the district court instructed the jury that it could find

that the defendants “knowingly” possessed and attempted to pass counterfeit

currency if the evidence proved beyond a reasonable doubt that the defendants had

every reason to know the counterfeit nature of the bills but deliberately shut their

eyes to that fact. The court overruled Santos’ objection to that “deliberate

ignorance” instruction. The jury found Santos and Nieves guilty on all counts.

      Nieves’ presentence investigation report (PSR) found her responsible for

$289,200 in loss — the total amount of counterfeit currency the government had

seized from the conspirators during its investigation. It also found that part of

Nieves’ offense took place outside the United States, triggering a two-level

increase to her offense level. See United States Sentencing Guidelines

§ 2B5.1(b)(5) (Nov. 2015). Nieves objected to both findings. At Nieves’ sentence

hearing the government called Agent Seeger to support the PSR’s

recommendations; he testified that Fabian had told him that Nieves had brought

back $176,000 in counterfeit currency over the course of two trips to Colombia.

      The district court adopted the PSR in full. It calculated Nieves’ advisory

guidelines range to be 46 to 57 months and sentenced her to 46 months


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imprisonment. Santos, who had been charged with and convicted of one count less

than Nieves and whose specific offense characteristics did not include having

committed an “offense outside the United States” was sentenced to 7 months

imprisonment.

                                          II.

      We first address Santos’ contention that there was insufficient evidence for

the jury to find her guilty of conspiracy to pass or attempt to pass or possess

counterfeit currency (Count One), and possession of counterfeit currency (Count

Two). Santos did not make a renewed motion for a judgment of acquittal at the

close of trial, so we review her challenge to the sufficiency of the evidence only for

a manifest miscarriage of justice. United States v. House, 684 F.3d 1173, 1196

(11th Cir. 2012). That means that we will affirm her conviction unless “the

evidence on a key element of the offense is so tenuous” that the conviction is

“shocking.” Id.

      Santos details the evidence that, in her view, points to her innocence. But “it

is not enough for a defendant to put forth a reasonable hypothesis of innocence,

because the issue is not whether a jury reasonably could have acquitted but

whether it reasonably could have found guilt beyond a reasonable doubt.” United

States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006), abrogated on other


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grounds as recognized in United States v. DiFalco, — F.3d —, No. 15-14763, 2016

WL 5092599 (11th Cir. Sept. 20, 2016). She fails to address the overwhelming

direct and circumstantial evidence that the government presented at trial. For

example, Rodriguez and Fuentes testified about Santos’ actual knowledge of, and

active participation in, the scheme, including her remark that Target was “an easy

target” for passing counterfeit bills. And security camera footage showed her

visiting in a short period of time multiple Target stores that reported receiving

counterfeit bills. In light of that evidence, there is nothing “shocking” about her

convictions, and there was no manifest miscarriage of justice.

      Santos also contends that the district court erred by allowing Fuentes to

testify that Jorge had told him that Santos and Nieves were going to Colombia to

bring back counterfeit currency. Because Jorge was unavailable for cross-

examination, Santos asserts that testimony about his out-of-court statements

violated Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). We review

“issues concerning a district court’s evidentiary rulings, such as the Bruton claim

here, for abuse of discretion . . . .” United States v. Turner, 474 F.3d 1265, 1275

(11th Cir. 2007).

      In Bruton the Supreme Court held that the Confrontation Clause of the Sixth

Amendment generally bars admitting a codefendant’s confession inculpating the


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defendant unless that codefendant is subject to cross-examination. 391 U.S. at

126, 88 S. Ct. at 1622. That rule does not apply here for two reasons.

      First, Bruton applies only “in the context of a joint trial.” Id. at 137, 88 S.

Ct. at 1628; see Dutton v. Evans, 400 U.S. 74, 87, 91 S. Ct. 210, 219 (1970)

(distinguishing Bruton on the ground that the defendant was not tried jointly with

the confessor). While Santos was tried jointly with Nieves, she was not tried

jointly with Jorge, so Bruton does not apply to the admission of Jorge’s out-of-

court statements at Santos’ trial.

      Second, this Court has held that the admission of a co-conspirator’s

statement made in furtherance of the conspiracy does not violate Bruton. United

Sates v. Ayarza-Garcia, 819 F.2d 1043, 1049 (11th Cir. 1987), superseded by

statute on other grounds by 46 U.S.C. app. § 1903(f); see also Dutton, 400 U.S. at

87, 91 S. Ct. at 219 (holding that a Georgia evidence rule allowing admission of

co-conspirators’ statements did not violate the Confrontation Clause). Here,

Jorge’s statement was admitted on the ground that it was not hearsay because it

was a co-conspirator’s statement made in furtherance of a conspiracy, and Santos

does not challenge that ruling. That means that under our Ayarza-Garcia decision

Bruton does not bar admission of the challenged statement.




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      Santos’ final contention is that the district court erred by instructing the jury

that it could find that she acted “knowingly” if it found that she was “deliberately

ignorant.” But “[w]e need not decide whether evidence justified the deliberate

ignorance instruction, because our decision in United States v. Stone, 9 F.3d 934

(11th Cir. 1993), says that it does not matter.” United States v. Kennard, 472 F.3d

851, 858 (11th Cir. 2006). That is because an errant deliberate ignorance

instruction is harmless if the jury could have convicted on a sufficiently supported

theory of actual knowledge. Id.

      In addition to circumstantial evidence of Santos’ actual knowledge of the

counterfeit currency scheme, Rodriguez and Fuentes testified about her actual

knowledge of the scheme and recounted her statement that it was easy to target

Target. So, even assuming the deliberate ignorance instruction was in error, the

error was harmless because the jury had sufficient evidence to find that Santos had

actual knowledge.

                                         III.

      Having disposed of all of Santos’ contentions, we now turn to Nieves’

appeal.

                                          A.




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      Nieves first contends that there was insufficient foundation to admit into

evidence the Casselberry Walmart counterfeit $100 bill and that the bill was not

relevant evidence. We review a district court’s evidentiary rulings for abuse of

discretion, United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir. 2012), and

there was no abuse here.

      Under Federal Rule of Evidence 901(a), proffered evidence must be

authenticated before admission by “evidence sufficient to support a finding that the

item is what the proponent claims it to be.” Importantly, the proponent need only

make out a prima facie case that the evidence is what he says it is; after that, the

ultimate question of authenticity is left to the jury. United States v. Belfast, 611

F.3d 783, 819 (11th Cir. 2010).

      Nieves argues that the government failed to lay the proper foundation for the

Casselberry Walmart bill because it did not put on testimony that the proffered bill

was the one that she actually handed to a Walmart cashier. But that argument

ignores all of the circumstantial evidence that linked Nieves to the proffered bill.

Aguilera testified that he received the counterfeit bill from the Walmart’s manager

and that Nieves admitted to having tried to pay with a bill that turned out to be “not

good.” He also connected the bill he received that day to the bill offered into

evidence by noting that he had placed the counterfeit note in the same evidence


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bag that was presented at trial. And through their matching serial numbers, Agent

Seeger linked the proffered bill to other counterfeit bills that had been seized

during the investigation of the conspiracy. That evidence, taken together,

established a prima facie case that the bill was what the government claimed it

was, and the district court properly admitted it.

      Nieves’ argument that the bill was not relevant is also based on her assertion

that the government’s evidence did not directly link the proffered bill to the

counterfeit bill she was accused of passing. Under Federal Rule of Evidence 401,

evidence is relevant if “it has any tendency to make a fact more probable” than it

would be without the evidence and the “fact is of consequence in determining the

action.” Here, the matching serial numbers on the proffered bill and other bills

seized from the conspiracy establish its relevance because they make it more

probable that Nieves took part in the counterfeit currency conspiracy. The district

court acted within its discretion when it admitted the proffered bill.

                                          B.

      Nieves next challenges the district court’s decision to exclude Rodriguez’s

conviction history; she had intended to use the convictions to impeach him on

cross-examination. As an evidentiary ruling, we review that district court ruling




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for abuse of discretion. United States v. Pritchard, 973 F.2d 905, 908 (11th Cir.

1992).

       Federal Rule of Evidence 609 creates a presumption against admissibility for

convictions when the witness was convicted or released more than ten years before

he testifies. Evidence of those convictions is barred unless its probative value

“substantially outweighs” its prejudicial effect. Fed. R. Evid. 609(b)(1). The

upshot is that “such convictions will be admitted very rarely and only in

exceptional circumstances.” Pritchard, 973 F.3d at 908 (quotation marks omitted).

And in the exceptional case where the district court does not admit a ten-year-old

conviction that should have been admitted, the error is harmless “if the witness’

credibility was sufficiently impeached by other evidence . . . .” United States v.

Burston, 159 F.3d 1328, 1336 (11th Cir. 1998).

       All of Rodriguez’s convictions were over ten years old, and the district court

did not abuse its discretion in finding that this was not an exceptional circumstance

warranting their admission.4 Indeed, the probative value was especially slim here

because Nieves was able to impeach Rodriguez’s credibility in other ways,

including bringing up his plea deal with the prosecution and the discrepancies


       4
         As stated above, the Rule 609(b) presumption does not apply to convictions where the
witness was released within ten years of his testifying, even if his conviction was earlier. But
Nieves has not asserted that Rodriguez was released within the ten year window, and we do not
address that possibility.
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between his initial statements and his testimony. That also means that, even if the

district court had erred by excluding the prior convictions, the error would have

been harmless because Rodriguez was sufficiently impeached by other evidence.

                                         C.

      Nieves also contends that the district court erred by not granting her renewed

motion for a judgment of acquittal after the jury’s verdict. We review de novo a

district court’s post-trial ruling on a renewed motion for a judgment of acquittal,

but we make all reasonable inferences in the government’s favor. United States v.

Edouard, 485 F.3d 1324, 1349 (11th Cir. 2007). Furthermore, all credibility

determinations are for the jury to make, and we assume that it made them in a way

that supports the verdict. Thompson, 473 F.3d at 1142.

      The thrust of Nieves’ argument is that Rodriguez’s and Fuentes’ testimony

was not credible because they were co-conspirators who received plea agreements

in exchange for their testimony. Without that testimony, she asserts, there was

insufficient evidence to prove that she knew the unlawful purpose of the

conspiracy and willfully joined it (Count One) or that she willfully possessed

counterfeit currency with intent to defraud (Count Two). But because we must

assume that the jury found that testimony credible, there was more than enough

evidence to support those convictions.


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      Nieves also asserts that the government did not present sufficient evidence

regarding her mental state to convict her on Count Four, which charged her with

knowingly passing or attempting to pass counterfeit currency. She argues that

there was no evidence that she knew the Casselberry Walmart bill was counterfeit

and no evidence that she intended to defraud. Here again she relies on the fact that

the government did not call a witness who directly received the proffered bill from

her. A reasonable jury could infer, however, that Nieves passed that bill because

its serial number matched the serial numbers of other counterfeit bills seized

during the investigation of the conspiracy. A reasonable jury could find that

Nieves knew that the bill, like all of the bills held by the conspirators, was

counterfeit, and that she tried to pass the bill with the intent to defraud. The

evidence also showed that Nieves followed the conspiracy’s MO after being caught

— offering authentic currency and blaming her bank — which could lead a

reasonable jury to find that she had both knowledge and intent. The evidence,

therefore, was sufficient to sustain the verdict.

                                          D.

      Finally, Nieves challenges her sentence on four grounds. We will address

each in turn. First, Nieves contends that the district court erred by increasing her

offense level by two levels because it found that part of the offense occurred


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outside the United States. We review that factual finding for clear error, United

States v. Williams, 340 F.3d 1231, 1234–35 (11th Cir. 2003), and we hold that it

was not clearly erroneous. Rodriguez testified at trial that Nieves went to

Colombia twice to bring back counterfeit currency, and bank records introduced

into evidence showed that she was in Colombia when he said she was. That was

enough for the district court to find by a preponderance of the evidence that part of

her offense occurred outside the United States. 5

       Nieves also challenges the increase in her offense level on due process

grounds. She points to the out-of-court statement by Fabian, repeated at the

sentence hearing by Agent Seeger, that she smuggled $176,000 of counterfeit

currency from Colombia into the United States. While she concedes that hearsay

is admissible at sentencing, see United States v. Ghertler, 605 F.3d 1256, 1269

(11th Cir. 2010), Nieves argues that basing her sentence on such “unreliable”

evidence violated her right to due process.

       We review de novo constitutional challenges to sentences. Id. at 1268.

Nieves is correct that “[a] defendant has a due process right . . . not to be sentenced

based on false or unreliable information.” Id. at 1269. But the burden is on the




       5
         Nieves repeatedly asserts that the district court failed to make specific factual findings
at sentencing. That is incorrect. The court adopted the PSR’s factual findings as its own.
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defendant to show “(1) that the challenged evidence is materially false or

unreliable and (2) that it actually served as the basis for the sentence.” Id.

      Nieves has not met her burden. She argues that the statement was not

reliable because it was hearsay, but she does not account for the evidence at trial

that corroborated the statement, including Rodriguez’s testimony about her trips to

Colombia and Nieves’ bank statements showing she was there. That corroboration

established the reliability of Fabian’s statement. And she can point to nothing in

the record that suggests that the court “based” its increase on Fabian’s statement,

as opposed to on the evidence of Nieves’ trips to Colombia presented at trial.

      Second, Nieves challenges the district court’s loss calculation, which we

review for clear error. United States v. Baldwin, 774 F.3d 711, 727 (11th Cir.

2014). She argues that she was only personally responsible for $221,000 of loss,

so the district court erred when it attributed over $250,000 in loss to her. The

higher loss calculation increased her offense level by 12 instead of 10. But Nieves’

personal responsibility is beside the point because at sentencing “[a] defendant

may be held responsible for the reasonably foreseeable acts of [her] co-

conspirators . . . .” Id. The district court pegged the loss amount at $289,200

because that was the amount of loss caused by the conspiracy as a whole. At trial

the government showed that Nieves’ actions, including smuggling counterfeit bills


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from Colombia and taking part in the East Coast spending spree, put her at the

heart of the conspiracy. Her co-conspirators’ conduct, then, was reasonably

foreseeable to Nieves and it was not clear error to hold her responsible for it at

sentencing.

      Nieves also asserts that the district court based its loss calculation on

Fabian’s out-of-court statement that she brought back $176,000 from Colombia.

She repeats her argument that using Fabian’s statement at sentencing violated her

right to due process. But she again misunderstands the basis of the loss

calculation. The total loss of $289,200 was based on the amount of counterfeit

currency seized by the government during its investigation, not on Nieves’ own

conduct. Fabian’s statement was not relevant to the calculation, so Nieves’ due

process rights were not implicated.

      Third, Nieves contends that the district court should have departed or varied

downward from the guidelines range because she had a minor daughter with an

abusive father. As an initial matter, we lack jurisdiction to review a district court’s

discretionary denial of a downward departure, United States v. Moran, 778 F.3d

942, 982 (11th Cir. 2015), so we will address only her downward variance

argument.




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      The district court is accorded “considerable discretion” in deciding whether

the sentencing factors at 18 U.S.C. § 3553(a) justify a variance. United States v.

Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009). And we will overturn the court’s

decision only if it abused that discretion. United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008). That would require a “clear error in judgment” resulting in

a sentence “outside the range of reasonable sentences dictated by the facts of the

case.” Id.

      The district court’s denial of the variance was not an abuse of discretion. It

considered that Nieves had a minor daughter, but it also considered that she left her

minor daughter for an extended period of time while she traveled the country

passing counterfeit bills. The balancing of those two factors was within the court’s

discretion, and its conclusion that Nieves was not entitled to a downward variance

was not an error in judgment.

      Finally, Nieves contends that the district court erred by not granting a

downward variance in light of the unwarranted disparity in sentences between her

and her codefendants. The same abuse of discretion standard applies here. Shaw,

560 F.3d at 1238.

      A disparity in sentences between codefendants in a single case is “generally

not an appropriate basis for relief on appeal.” United States v. Cavallo, 790 F.3d


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1202, 1237 (11th Cir. 2015). And it is not an appropriate basis here. Four of

Nieves’ co-conspirators — Fabian, Jorge, Rodriguez, and Fuentes — pleaded

guilty and cooperated with the government, justifying their shorter sentences.

Santos went to trial, but there were at least two reasons for the court to give her a

lighter sentence. First, because she was not involved in the Casselberry Walmart

incident, she was convicted of one less count than Nieves. Second, there was little

evidence that Santos actually smuggled counterfeit currency in from Colombia,

and as a result she did not receive an increase in her offense level for part of the

offense having occurred outside the United States. There were no unwarranted

sentencing disparities here.

      AFFIRMED.




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