           Case: 16-12937    Date Filed: 12/21/2016   Page: 1 of 6


                                                          [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12937
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:15-cr-20672-KMW-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

EMELYS GONZALEZ,

                                                          Defendant-Appellant.

                      ________________________

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

                            (December 21, 2016)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Emelys Gonzalez appeals her conviction for aggravated identity theft in

violation of 18 U.S.C. § 1028A(a)(1). After careful review, we affirm.

                                         I.

      A grand jury indicted Gonzalez on five counts, charging her with: (1) one

count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349; (2)

three counts of bank fraud in violation of 18 U.S.C. § 1344; and (3) one count of

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

Gonzalez challenges only her conviction for aggravated identity theft on appeal,

we summarize only the evidence relevant to that count.

      On December 8, 2015, the government produced Amy Headley as a witness

at Gonzalez’s trial. Headley testified that she was previously known as “Amy

Elannan” because of an earlier marriage, but had used the name “Headley” since

1998. She also said she lived in Hialeah, Florida twenty years earlier. The

government then asked Headley to examine a check that was dated May 4, 2014.

Headley testified that her former name and Hialeah address were printed on the

top-left corner of the check. Although the name on the signature line of the check

read “Amy M. Elannan,” Headley stated that it was not her signature, and that she

had not “used that signature in years.” She observed that the check was made out

to an “Evelyn Gonzalez” for $4,000, but said she did not know anyone who went

by that name or by “Emelys Gonzalez.” Headley also testified that she did not


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know the defendant and never authorized the defendant or anyone else to use her

name and signature for this particular check. Victoria Spivey, an investigator for

Bank of America, also testified for the government. She stated there was a $4,000

deposit to Gonzalez’s Bank of America account on May 4, 2014 via an automated

teller machine in North Hialeah.

       After the government finished presenting its evidence, Gonzalez moved for

a judgment of acquittal on all counts pursuant to Federal Rule of Criminal

Procedure 29. With regard to the aggravated identity theft count, she argued there

was not enough evidence to establish that “Amy M. Elannan” was a name that

belonged to a specific person. She also asserted acquittal was appropriate under

United States v. Mitchell, 518 F.3d 230 (4th Cir. 2008). The district court denied

Gonzalez’s Rule 29 motion as to the aggravated identity theft count, noting

Headley’s testimony that she previously lived at the address listed on the check and

went by the name “Amy Elannan.” The jury later found Gonzalez guilty on all

five counts. The district court sentenced her to a total of 25-months imprisonment.

                                           II.

      On appeal, Gonzalez argues the district court erred when it denied her

motion for judgment of acquittal because the government failed to prove the name

she used to commit her offense (“Amy Elannan”) belonged to a specific person.

Put another way, Gonzalez asserts the government presented identifying


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information that was too general to identify a specific person. “We review de novo

the denial of a defendant’s properly-preserved motion for judgment of acquittal.”

United States v. Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016). Such a denial will

be upheld if, viewing all facts and inferences in the light most favorable to the

government, “a reasonable trier of fact could conclude that the evidence establishes

the defendant’s guilt beyond a reasonable doubt.” Id. (quotation omitted).

      To sustain a conviction for aggravated identity theft under 18 U.S.C.

§ 1028A(a)(1), the government “must establish that the defendant (1) knowingly

transferred, possessed, or used; (2) the means of identification of another person;

(3) without lawful authority; (4) during and in relation to a felony enumerated in

§ 1028A(c),” which includes bank fraud. United States v. Barrington, 648 F.3d

1178, 1192 (11th Cir. 2011) (quotation omitted); 18 U.S.C. § 1028A(c)(5). The

statute defines a “means of identification” as “any name or number that may be

used, alone or in conjunction with any other information, to identify a specific

individual.” 18 U.S.C. § 1028(d)(7) (emphasis added).

      Gonzalez argues the government failed to meet its burden because the name

and signature of “Amy Elannan” are not sufficiently unique to identify a specific

person under Mitchell. Mitchell is a Fourth Circuit case holding that under

§ 1028A, “a bare name . . . is not likely to be sufficiently unique . . . to identify a

specific person.” 518 F.3d at 235. It also concluded that a false driver’s license


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with a first and last name (“Marcus Jackson”), city of residence, and birth year that

all matched a specific person was not sufficient to tie the false license to that

person. Id. at 235–36. Even if Mitchell was binding precedent in this Circuit, it

would not help Gonzalez here. The government’s evidence showed Gonzalez used

not only Headley’s former name and signature, but also Headley’s previous

address, to commit bank fraud. At trial, Headley said she was previously known as

“Amy Elannan” and used to live at the address listed on the check. She also

testified that the “Amy M. Elannan” signature on the check was not hers, and that

she never gave anyone permission to use her name and signature for the check.

Viewing these facts in the light most favorable to the government, a reasonable

jury could conclude that Gonzalez used the “means of identification” of a specific

person—Amy Headley—to commit bank fraud. In other words, a check with a

first name, last name, and address that all match a specific person’s previous

identification information contains sufficiently unique identifiers to tie the check to

that person.

      Gonzalez also argues the government failed to prove the name “Amy

Elannan” belonged to a specific person because Headley stopped using the name

“Elannan” more than sixteen years before the issuance of the check and eight years

before the account associated with the check was opened in 2006. She also notes

that Headley had not lived at the Hialeah address listed on the check for over


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twenty years and was not living there when the account was opened. However,

nothing in the relevant statute requires the “means of identification” to be

contemporary or up-to-date. See 18 U.S.C. § 1028(d)(7). The identifying

information need only be sufficiently unique “to identify a specific individual.” Id.

In this case, Headley’s former name and address taken together are sufficiently

unique for a reasonable jury to conclude Gonzalez committed bank fraud using

identifying information that belonged to a specific person.

      AFFIRMED.




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