            Case: 14-11121   Date Filed: 07/27/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-11121
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 1:13-cr-00116-ODE-GGB-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

ELTON LEE FLENAUGH,
a.k.a. Ali Emir Waheed,
a.k.a. Joshua Ford,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                               (July 27, 2015)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Elton Lee Flenaugh appeals his sentence of 111 months of imprisonment
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following his pleas of guilty to possessing 15 or more counterfeit or unauthorized

access devices, 18 U.S.C. § 1029(a)(3), and aggravated identity theft, id. § 1028A.

Flenaugh challenges the four-level enhancement of his offense level for using the

means of identification of 50 or more victims to manufacture fraudulent credit

cards. United States Sentencing Guidelines Manual § 2B1.1(b)(2)(B) (Nov. 2013).

We affirm.

      Flenaugh argues, for the first time, that the “district court should have

required proof of the number of victims by clear and convincing evidence rather

than by a preponderance of the evidence” because the enhancement significantly

increases his advisory guideline range, but we rejected a similar argument to apply

a more stringent burden of proof in United States v. Florence, 333 F.3d 1290, 1294

(11th Cir. 2003). In Florence, we reiterated that “our precedent states that ‘the

government’s burden of proof in establishing the applicability of a sentencing

enhancement is the preponderance of the evidence standard.’” Id. (quoting United

States v. Gonzalez, 71 F.3d 819, 836 (11th Cir. 1996) (brackets omitted)). Like the

defendant in Florence, Flenaugh “is unable to establish any error, let alone plain

error, by the district court in regard to the burden of proof required to establish the

facts supporting the application” of his sentence enhancement. Id.

      Flenaugh contends that he was not subject to section 2B1.1(b)(2)(B) because

he did not use the means of identification of other persons unlawfully or without


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authority, but the district court did not clearly err by making a contrary finding.

Numerous fraudulent credit cards and driver’s licenses discovered in Flenaugh’s

belongings, and photographs and emails collected from personal electronic devices

and email accounts controlled by Flenaugh and his girlfriend, Deje Silas,

established that Flenaugh used stolen personal identity information to manufacture

fraudulent credit cards. When Flenaugh and Silas were arrested at the Atlanta

airport, they had in their baggage 94 fraudulent credit cards, a majority of which

had been encoded with real account information, and some of those cards had been

embossed with the names of Robert Lloyd, Burton Andrews, and Daniel Roberts,

which matched the names on three counterfeit driver’s licenses containing

Flenaugh’s photograph. Earlier, officers in California and Miami had discovered

fraudulent credit cards in Flenaugh’s control that had been embossed with Lloyd’s

name and the name of Matthew Carnegie, an identity that Flenaugh used to travel

to Portland, Oregon, where he made unauthorized purchases using a real credit

account number identical to one encoded on a fraudulent card that he possessed at

the Atlanta airport. The officers in California and at the Atlanta airport also seized

Flenaugh’s iPad, the couple’s iPad Mini, and Silas’s cellular telephones, and the

searches of those devices and the couples’ email accounts revealed that the couple

transacted with persons in Russia and Costa Rica; accessed information about

software used to create credit card templates; received software used to encode the


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magnetic strips of credit cards with account information; bought and sold blank

credit cards and retail gift cards; had an embossing machine; and had multiple

images and lists of detailed personal identification information for hundreds of

persons, some of which had been encoded on the fraudulent credit cards seized at

the Atlanta airport. At sentencing, a district court is free to make reasonable

inferences from the evidence. See United States v. Chavez, 584 F.3d 1354, 1367

(11th Cir. 2009). In the light of the uncontested facts in Flenaugh’s presentence

investigation report and the evidence introduced during his sentencing hearing, the

district court could reasonably infer that Flenaugh made the fraudulent credit cards

found in his possession when he had resources available to create the cards and

they were encoded with real account information and embossed with Silas’s name

and names matching those on Flenaugh’s counterfeit driver’s licenses.

      Flenaugh argues, for the first time, that he did not manufacture every

fraudulent credit card found in his possession, but even accepting that as true, the

district court nonetheless could hold him responsible for all the fraudulent cards

that he possessed. His sentence enhancement is based on “the offense . . .

involved,” U.S.S.G. § 2B1.1(b)(2), and encompasses “the offense of conviction

and all relevant conduct under § 1B1.3,” U.S.S.G. § 1B1.1cmt. n.1(H), which

includes “acts . . . committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant” and the reasonably foreseeable acts


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of his coconspirators, id. § 1B1.3(a)(1). Based on the evidence that Flenaugh

possessed functionable fraudulent credit cards, identification information for

hundreds of people, and access to equipment and associates involved in producing

fraudulent cards, the district court reasonably found that Flenaugh manufactured

the fraudulent cards or directed others to make the cards for him. Although many

of the fraudulent cards in Flenaugh’s possession were not encoded with personal

identification information discovered on his devices or in his email accounts, the

district court could reasonably infer that Flenaugh used, directed an associate to

use, or reasonably could have foreseen that an accomplice would use identification

information they had available to them to produce the fraudulent credit cards.

      The district court did not clearly err in finding that Flenaugh had more than

50 victims. At sentencing, Flenaugh conceded that two victims had suffered actual

financial losses from unauthorized charges made on credit card accounts that were

fraudulently created in their names. And Flenaugh, by failing to object to the

statement in his presentence investigation report, admitted that the fraudulent credit

cards in his possession contained the personal identification information of at least

116 persons. See United States v. Bennett, 472 F.3d 825, 833–34 (11th Cir. 2006).

Flenaugh’s offense involved more than 50 victims.

      We AFFIRM Flenaugh’s sentence.




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