           Case: 13-12577   Date Filed: 05/29/2014   Page: 1 of 14


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12577
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20868-CMA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


FRANKI JOSEPH,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 29, 2014)

Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Franki Joseph, a Haitian national, challenges his convictions for

impersonating a United States citizen, making a false statement on a United States

passport application, and aggravated identity theft. He also challenges part of his

35-month sentence.

                                          I.

      Joseph used the birth certificate of Christopher Donnell Stevens, a United

States citizen, to obtain a Florida identification card that bore Stevens’ name but

his own photograph. Joseph then applied for a United States passport using: (1)

the fraudulently obtained Florida identification card; (2) another photograph of

himself; and (3) Stevens’ name, date of birth, social security number, and birth

certificate. The State Department officials who reviewed the passport application

quickly detected the ruse, and a federal grand jury later indicted Joseph on three

counts: false impersonation of a citizen, in violation of 18 U.S.C. § 911 (Count 1);

making a false statement on a passport application, in violation of 18 U.S.C.

§ 1542 (Count 2); and aggravated identity theft, in violation of 18 U.S.C. § 1028A

(Count 3).

      At trial the government presented evidence of Joseph’s guilt on all three

counts. The evidence included testimony from the real Christopher Donnell

Stevens, who said that he did not know Joseph, as well as testimony from various




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state and federal officials who verified that Joseph had used Stevens’ identity when

applying for a passport.

       Joseph chose to testify in his own defense. But instead of challenging the

accusations against him, he made a number of concessions. He conceded that he

was a foreign national, that he had falsely claimed to be Stevens, and that he had

knowingly applied for a passport using Stevens’ identity. He also conceded that he

was not legally entitled to a United States passport. Joseph said, nonetheless, that

he thought he could file an application in Stevens’ name as long as Stevens knew

about it. He also said that he thought that Stevens knew what he was doing.

       The rest of Joseph’s testimony was devoted to his life story. In response to

defense counsel’s questions, he described himself as an honest, hard-working, law-

abiding young man who had broken the law not out of malice but out of a desire to

visit his mother in Haiti — a trip for which he said he needed a United States

passport. The government objected to his testimony at several points, arguing that

Joseph appeared to be playing to the jury’s sympathies in hopes of winning a jury

nullification verdict. 1 But those objections were overruled.

       In closing argument, defense counsel returned to Joseph’s life story and his

allegedly good character. Counsel said: “[Joseph] lived a lawful life up to the

       1
          A defendant seeking a jury nullification verdict wants the jury to use its “de facto power
to refuse to apply the law as instructed by the court,” even though the “exercise of such power is
in dereliction of the jury’s sworn duty.” United States v. Funches, 135 F.3d 1405, 1408 (11th
Cir. 1998) (emphasis omitted).
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certain point when he applied for the U.S. passport. Okay. You can’t discount the

fact that Mr. Joseph was an honorable and a contributing member of our society.”

The government objected once more, and that time the objection was sustained. In

its closing argument, the government referred to defense counsel’s comments

about Joseph’s character. It said that Joseph’s honor and social contributions were

relevant to his sentence, but not to the jury’s decision about his guilt. Joseph did

not object. The jury found Joseph guilty on all three counts.

      Joseph’s presentence investigation report (PSR) grouped Counts 1 and 2

together as required by United States Sentencing Guideline § 3D1.2(b); Count 3

was excluded from grouping under § 3D1.1(b)(2). Together, Counts 1 and 2

resulted in a base offense level of 8 under § 2L2.2(a), to which the PSR added a 4-

level enhancement under § 2L2.2(b)(3) because Joseph had attempted to

fraudulently obtain a United States passport. The PSR gave him no credit for

acceptance of responsibility, leaving Joseph with a total offense level of 12 on

Counts 1 and 2. Combining that total offense level with Joseph’s criminal history

category of I yielded a guidelines range of 10–16 months on Counts 1 and 2. As

for Count 3, the language of 18 U.S.C. § 1028A(a)(1) required that Joseph serve a

mandatory two-year term of imprisonment to run consecutive to any other term of

imprisonment he received for Counts 1 and 2. See 18 U.S.C. § 1028A(a)(1);




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U.S.S.G § 5G1.2(a). As a result, Count 3 was not factored into his guidelines

range.

         Joseph objected to the PSR, contending that he deserved a 2-level reduction

in his total offense level for Counts 1 and 2 for acceptance of responsibility. He

also argued for a downward variance with respect to Counts 1 and 2 under 18

U.S.C. § 3553(a). The district court denied Joseph’s request for an acceptance-of-

responsibility reduction, noting that he had gone to trial not to accept responsibility

but to win a jury nullification verdict. The court then denied his request for a

downward variance, finding it to be unwarranted. Joseph was sentenced to

concurrent terms of 11 months on Counts 1 and 2, with a consecutive term of 24

months on Count 3, making his total sentence 35 months imprisonment.

                                           II.

         Joseph raises four issues on appeal. First, he challenges his conviction on

Count 3 for aggravated identity theft on the ground that there was insufficient

evidence to establish that he used Stevens’ means of identification “without lawful

authority.” Second, he contends that the district court improperly restricted his

closing argument while failing to restrict later, improper statements made by the

government in its response. Third, he contends that the court improperly

calculated his guidelines range by not crediting him with a 2-level reduction for

acceptance of responsibility. Fourth, he contends that his sentences on Counts 1


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and 2 are substantively unreasonable because the district court failed to properly

weigh the 18 U.S.C. § 3553(a) factors.

                                            A.

       Joseph contends that the evidence presented at trial was insufficient to

establish that he used Stevens’ means of identification “without lawful authority,”

as required to prove Count 3, aggravated identity theft. See 18 U.S.C.

§ 1028A(a)(1). Though he twice moved at trial for a judgment of acquittal under

Rule 29 on grounds of insufficient evidence, he makes this particular argument for

the first time on appeal. As a result, we review it only for plain error. See United

States v. Joseph, 709 F.3d 1082, 1103 (11th Cir. 2013) (applying plain error review

where the defendant moved at trial for a judgment of acquittal under Rule 29 on

grounds of insufficient evidence but failed to make the argument at trial that he

made on appeal). Joseph bears the burden of showing that there is “(1) an error,

(2) that is plain, (3) that affects [his] substantial rights, and (4) that seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008).

       There are several ways a defendant can commit aggravated identity theft

under 18 U.S.C. § 1028A. One way is if he (1) knowingly possessed or used (2)




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another person’s means of identification 2 (3) without lawful authority (4) during or

in relation to the felony of making a false statement in a United States passport

application. See 18 U.S.C. § 1028A(a)(1), (c); see also Flores-Figueroa v. United

States, 556 U.S. 646, 647, 129 S.Ct. 1886, 1888 (2009). The only issue here is

whether the government properly proved the third element, that Joseph used

Stevens’ means of identification “without lawful authority.” The government need

not show that a defendant stole another person’s means of identification in order to

establish that he used it without lawful authority. See United States v. Hurtado,

508 F.3d 603, 607–08 (11th Cir. 2007), abrogated on other grounds by Flores-

Figueroa, 556 U.S. 646, 129 S.Ct. 1886; United States v. Lumbard, 706 F.3d 716,

725 (6th Cir. 2013) (concluding “that the phrase ‘without lawful authority’ in §

1028A is not limited to instances of theft”). The government can establish that a

defendant used another’s means of identification “without lawful authority” by

showing that the defendant used it without permission. See United States v. Hines,

472 F.3d 1038, 1040 (8th Cir. 2007) (holding that a defendant’s use of a person’s

name and social security number without permission constituted the use of a means


       2
          “Means of identification” is defined 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)(A). Examples include, among other things, a name, social security number, date of
birth, and official driver’s license. Id.; see also United States v. Hurtado, 508 F.3d 603, 607 n.4
(11th Cir. 2007), abrogated on other grounds by Flores-Figueroa v. United States, 556 U.S. 646,
129 S.Ct. 1886 (2009). Joseph testified at trial that he used a number of Stevens’ means of
identification, including his name, birth date, birth certificate, and social security number.


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of identification “without lawful authority”). Or the government can establish that

a defendant used another’s means of identification without lawful authority by

showing that, even if he took the means of identification with permission, he used

it for an unlawful or illegitimate purpose. See United States v. Reynolds, 710 F.3d

434, 436 (D.C. Cir. 2013) (“‘[U]se[] . . . without lawful authority’ easily

encompasses situations in which a defendant gains access to identity information

legitimately but then uses it illegitimately — in excess of the authority granted.”);

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 . . . [,] it is violative of § 1028A(a)(1).”); see also United States v. Retana,

641 F.3d 272, 273, 274–75 (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).

      Here, the government established the element of “without lawful authority”

in two ways — with evidence that Joseph did not have permission to use Stevens’

means of identification and with evidence that Joseph used Stevens’ means of

identification for an unlawful purpose. First, Stevens testified that he did not know

Joseph. From that testimony, a reasonable jury could have inferred that Stevens

did not give Joseph permission to use his means of identification. Second, even

assuming Stevens authorized Joseph to use his means of identification, Joseph


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admitted that he used it for an unlawful purpose — to apply for a United States

passport he was not entitled to receive. That admission alone was enough to prove

that Joseph used the means of identification without lawful authority. The jury had

plenty of evidence to find all the elements of Count 3. The district court did not

err, much less plainly err, in denying Joseph’s motions for a judgment of acquittal

with respect to Count 3. 3

                                              B.

       Joseph next contends that the district court erred twice during closing

arguments. First, he asserts that the court impermissibly restricted his closing

argument by sustaining the government’s objection to the statement of defense

counsel that Joseph was an honorable and contributing member of society.

Second, he asserts that the district court erred in allowing the government in its

rebuttal to say that his honor and social contributions were relevant to his sentence

but not to his guilt.

       We review the limitations that a district court places on a defendant’s

closing argument only for abuse of discretion. See United States v. Gaines, 690

F.2d 849, 858 (11th Cir. 1982). Under that standard, we will reverse the district

court for limiting a defendant’s closing argument only when the defendant is

deprived of the “opportunity to make all legally tenable arguments that are

       3
         Joseph challenges his conviction on Count 3 on other grounds, but those arguments do
not merit discussion.
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supported by the facts of the case.” Id. Despite his assertions to the contrary, the

only arguments denied to Joseph by the district court were ones that were not

legally tenable.

      The district court found at sentencing that Joseph pursued a jury nullification

strategy, a finding that Joseph does not challenge. Defense counsel’s statements

about Joseph’s honor and social contributions were part and parcel of that strategy.

This Court has repeatedly disapproved of jury nullification. United States v.

Funches, 135 F.3d 1405, 1409 (11th Cir. 1998) (“[Jury nullification] verdicts are

lawless, a denial of due process and constitute an exercise of erroneously seized

power.”) (quoting United States v. Washington, 705 F.2d 489, 494 (D.C. Cir.

1983)). And we have held that “defense counsel may not argue jury nullification

during closing argument.” United States v. Trujillo, 714 F.2d 102, 106 (11th Cir.

1983). As a result, when the district court restricted defense counsel’s comments

about Joseph’s honor and social contributions — comments that were part of his

jury nullification efforts — the court did not deny Joseph the opportunity to make a

legally tenable argument. Instead, it kept him from making impermissible

arguments. See id. at 106. By the same logic, the district court properly permitted

the government’s fair response in its closing argument. See United States v. Frank,

599 F.3d 1221, 1238 (11th Cir. 2010). Joseph did not object to the government’s

statements that his honor and social contributions were relevant to his sentence but


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not his guilt, and there would have been no basis for that objection anyway. See

id.

                                          C.

      In the first of his two challenges to his sentence, Joseph contends that the

district court improperly calculated his guidelines range by failing to credit him

with a 2-level reduction for acceptance of responsibility. We review a district

court’s acceptance-of-responsibility determination for clear error. United States v.

Amedeo, 370 F.3d 1305, 1320 (11th Cir. 2004). We will set aside a district court’s

determination that a defendant did not accept responsibility only if the record

clearly establishes that the defendant in fact accepted responsibility. Id. at 1320–

21. Here, the record does not support the conclusion that Joseph accepted

responsibility.

      Instead of pleading guilty, Joseph went to trial. Of course, going to trial

does not automatically preclude a defendant from receiving a reduction for

acceptance of responsibility. A defendant may go to trial yet still be found to have

accepted responsibility in “rare situations,” such as where he wants to assert and

preserve issues related to the constitutionality of a law or where he wants to assert

or preserve issues related to the applicability of a law to his conduct. See U.S.S.G.

§ 3E1.1 cmt. n.2. The record here is clear, however, that Joseph did not go to trial

to assert or preserve legal issues of any sort. He sought only to preserve his


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freedom through a jury nullification verdict. His argument that, despite that fact,

he somehow accepted responsibility for his crimes is meritless. The district court

did not clearly err in finding that Joseph had not accepted responsibility.

                                          D.

      In the second of his two challenges to his sentence, Joseph asserts that his

concurrent 11-month sentences on Counts 1 and 2 are substantively unreasonable

because the district court failed to give proper weight to the sentencing factors in

18 U.S.C. § 3553(a). We review the reasonableness of a sentence only for abuse of

discretion. United States v. Thompson, 702 F.3d 604, 606–07 (11th Cir. 2012).

Under that standard, we will vacate a sentence only if we are left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors and arrived at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case. United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc).

      Joseph contends that the district court gave too little weigh to two of the

§ 3553(a) factors: (1) the nature and circumstances of the offense and (2) the

history and characteristics of the defendant. He asserts that at the same time the

court gave too much weight to a third § 3553(a) factor: (3) the need for a sentence

to reflect the seriousness of the offense, promote respect for the law, and provide

just punishment for the offense. We disagree.


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      A district court has substantial discretion in weighing the sentencing factors,

and it may give more weight to some factors than others. See United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district

court . . . .”) (quotation marks omitted). Here, the court did give some weight to

the first two sentencing factors, which cover Joseph’s personal story and the story

underlying his offenses. In fact, it discussed the evidence related to those two

factors at length, finding that Joseph had lived a better, more law-abiding life than

many of the defendants whom the district court typically sees.

      But the court determined that while those two factors might support

leniency, the third factor — the factor that covers the seriousness of Joseph’s

offenses and his respect (or lack thereof) for the law — outweighed them both.

We agree. Although Joseph committed serious crimes, he refused to take

responsibility for his actions. His actions demonstrated a lack of respect for the

law. And the district court properly exercised its discretion by assigning more

weight to that factor than to the other two. We do not have the definite and firm

conviction that the court committed a clear error of judgment by weighing the

factors the way it did. See Irey, 612 F.3d at 1190

      Nor do we believe that Joseph’s 11-month sentences on Counts 1 and 2,

which he will serve concurrently, lie outside the range of reasonable sentences


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dictated by the facts of the case. See id. We note that both sentences are within

Joseph’s guidelines range of 10–16 months and are therefore expected to be

reasonable. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)

(“Although we do not automatically presume a sentence within the guidelines

range is reasonable, we ordinarily expect a sentence within the Guidelines range to

be reasonable.”) (ellipsis and quotation marks omitted). We also note that, at 11

months each, Joseph’s concurrent sentences are substantially shorter than the

sentences he could have received. He could have received up to 36 months on

Count 1, see 18 U.S.C. § 911, and up to 120 months on Count 2, see 18 U.S.C.

§ 1542. The fact that his sentences are far below those statutory maximums further

supports the conclusion that they are reasonable. See United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008).

      For those reasons, we conclude that the district court did not abuse its

discretion in sentencing Joseph to concurrent, 11-month sentences on Counts 1 and

2.

      AFFIRMED.




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