                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3347

U NITED STATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

F AIRLY W. E ARLS,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
           No. 10 CR 222—Joseph S. Van Bokkelen, Judge.



  A RGUED S EPTEMBER 17, 2012—D ECIDED D ECEMBER 27, 2012




 Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
  B AUER, Circuit Judge. On July 10, 2011, a jury found
Fairly W. Earls (“Earls”) guilty of making a false state-
ment on a passport application, aggravated identity
theft, and knowingly transferring a stolen identification
document in violation of 18 U.S.C. § 1542, § 1028A(a)(1),
and § 1028(a)(2). On October 5, 2011, the district court
sentenced Earls to thirty-six months’ imprisonment on
2                                                No. 11-3347

Counts One and Three with a consecutive sentence
of twenty-four months’ imprisonment on Count Two.
Earls’ base offense level at sentencing was determined
to be eight; however, through the application of a
cross-reference listed in Sentencing Guidelines Sec-
tion 2L2.2(c)(1)(A), Earls’ offense level was increased
to fifteen. On appeal, Earls challenges the admission of
certain evidence at trial, as well as his sentence. For
the following reasons, we affirm.


                    I. BACKGROUND
   In February 1999, Earls was convicted in Wisconsin
state court of three felony counts of sexual assault of a six-
year-old child in violation of Wisconsin Statute § 948.02.
Earls was sentenced to forty-five years’ imprisonment
and twenty years’ probation. After exhausting his state
court remedies, Earls sought a federal writ of habeas
corpus, alleging ineffective assistance of counsel. In
August 2004, we concluded that Earls’ trial counsel was
ineffective and ordered that either the writ be granted
or the State retry Earls. See Earls v. McCaughtry, 379
F.3d 489 (7th Cir. 2004). The state opted to retry.
   In February 2005, Earls posted a $25,000 cash bond
with the Wisconsin state court. As a condition to Earls’
release, he agreed to appear at all court dates, have
no contact with minors, and notify the court if his
address changed. When Earls bonded out of jail, he was
listed as living with his sister Alice in Burbank, Illinois,
a home Alice had previously shared with her ex-husband
David Fuhrman.
No. 11-3347                                               3

  On October 31, 2005, the state of Wisconsin filed a
new case against Earls, charging him with twelve counts
of bail jumping, in violation of Wisconsin Statute § 946.49.
In October and November 2005, Earls violated his bond
conditions by failing multiple times to appear in court
for hearings and having contact with a minor. Conse-
quently, a bench warrant was issued. In late Decem-
ber 2005, Earls’ $25,000 cash bond was forfeited. In
January 2006, Wisconsin law enforcement enlisted the
United States Marshal Service to help track down Earls.
The Marshal Service interviewed Earls’ friends and
family, including his sister Alice, but were unable to
generate any leads.
   Meanwhile, on December 9, 2005, an individual had
requested the State of Illinois Department of Public
Health to issue a certified copy of the birth certificate of
David Fuhrman, Earls’ former brother-in-law. This was
done without Fuhrman’s knowledge or consent. Then
on March 14, 2006, the individual brought the birth certifi-
cate, together with Fuhrman’s divorce decree, to the
Indiana Bureau of Motor Vehicles and obtained an
Indiana state identification card in Fuhrman’s name.
Later that same day, the individual went to an
Indiana post office and applied for a passport using
the newly obtained Indiana state identification card
and Illinois birth certificate. The passport application
listed Fuhrman’s correct name, date of birth, and social
security number. Several weeks after the application
was submitted, the Department of State issued a pass-
port in the name of David Robert Fuhrman.
4                                             No. 11-3347

  On June 21, 2006, the new Fuhrman passport was used
to gain entry into Panama. The holder of the passport
left Panama three days later and traveled to Nicaragua
and Costa Rica. Additional passport stamps show that
the passport holder entered Panama again in 2007.
In January 2008, Earls used the Fuhrman passport to
obtain a Panamanian Retirement Tourist Visa in
Fuhrman’s name. Earls denied at trial that he was the
individual that applied for the subject passport, how-
ever, he did not dispute that he lived in Panama and
used a passport in the name of David Fuhrman while
living there.
  In August 2010, nearly five years after Earls had failed
to appear for his hearings in Wisconsin state court,
the United States Marshal Service received a tip that
Earls was living in Panama under the name David
Fuhrman. The Marshal Service contacted the Depart-
ment of State, which provided the photo used to obtain
the Fuhrman passport. The deputy marshal in receipt
of the photo recognized the man as Earls and notified
the Department of State, which then reached out to the
United States Embassy in Panama. In Panama, an investi-
gator examined the immigration records and discovered
that an individual identifying himself as David Fuhrman
was living in Boquete. The investigator and Panama
National Police went to Boquete and saw Earls walking
into a grocery store. Earls was then arrested, returned
to the United States, and subsequently indicted.
  On July 10, 2011 a jury found Earls guilty of making
a false statement on a passport application, aggravated
No. 11-3347                                              5

identity theft, and knowingly transferring a stolen iden-
tification document. The Presentence Investigation
Report (PSR) recommended an offense level of fifteen.
The PSR originally set a base offense level for Earls’ of-
fense at eight, but increased the offense level (through
a cross-reference pursuant to § 2L2.2(c)(1)(A)) because
Earls utilized the fraudulently obtained passport in the
commission of a felony offense, namely bail jumping.
After considering the PSR’s recommendation, and evalu-
ating the sentencing factors listed in 18 U.S.C. § 3553(a),
the district court sentenced Earls to thirty-six months’
imprisonment on Counts One and Three with a consecu-
tive twenty-four months’ imprisonment on Count Two.
The district court noted that this above-range sentence
was sufficient, but not greater than necessary, in
light of Earls’ prior convictions for sexually abusing
his daughter and another 13-year-old, and general lack
of respect for the law.


                    II. DISCUSSION
  Earls now files a three-fold appeal. He contends that
the trial court erred in admitting prejudicial evidence
that he faced up to sixty years in prison on his pending
state felony charges, that the trial court improperly
allowed two Government agents to identify Earls
via photographs at trial, and finally, that the trial court
erred when it applied the cross-reference provision
in Sentencing Guideline § 2L2.2(c)(1)(A). We address
each issue in turn.
6                                               No. 11-3347

    A. Evidence of Potential State Penalties
  Earls’ first contention is that the district court erred in
admitting evidence that Earls was facing up to sixty
years in prison on pending state felony charges. A trial
court’s evidentiary rulings will not be reversed on
appeal, absent a showing of abuse of discretion. United
States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011). If
we find there was an abuse of discretion, we then
review whether the error was harmless. See United States
v. Miller, 673 F.3d 688, 699 (7th Cir. 2012).
  At the time Earls fled to Panama, he was also facing
three felony charges in Wisconsin state court, carrying
a potential penalty of up to sixty years in prison. Before
trial in this case, the Government filed notice that
it intended to introduce these penalties as motive
evidence pursuant to Federal Rule of Evidence 404(b).
The Government argued that these charges, and their
corresponding penalty, were admissible as evidence
of Earls’ motive in obtaining Fuhrman’s passport and
fleeing to Panama.
  Earls objected, in part, arguing that informing the jury
of the maximum penalties he faced invited speculation
as to the nature of the charges, and risked substantial
prejudice. Earls offered to stipulate that he faced felony
charges, posted a $25,000 bond that was then forfeited,
and that he now faced additional felony charges with
substantial penalties. The district court denied Earls’
objection and permitted the Government to admit
evidence that the penalties at issue were substantial
and what those penalties would be. However, the
No. 11-3347                                                7

district court ruled that the Government could not delve
into the actual charges unless the door was opened
by Earls. The district court also said it would give a
limiting instruction directing the jury to consider the
evidence only as it pertained to motive.
  At trial, over Earls’ objection, the Government intro-
duced evidence that Earls faced three additional felony
charges in Wisconsin state court, with a potential penalty
of up to sixty years in prison. The Government did not
mention the specific offenses charged and the district
court gave a limiting instruction as promised.
  On appeal, Earls argues that the district court commit-
ted procedural error by failing to consider whether
the probative weight of the motive evidence was sub-
stantially outweighed by the danger of unfair prejudice.
Earls also contends that the district court committed
substantive error by rejecting his proposed stipulation,
that he faced “substantial penalties” in Wisconsin state
court and forfeited a $25,000 bond. Earls believed this
stipulation fairly apprised the jury of his motive to
commit the alleged offenses without the danger of
unfair prejudice. Earls further argues that informing the
jury of the maximum penalties he potentially faced only
invited speculation as to the nature of the charges.
  First, Rule 404(b) does not provide a rule of automatic
admission whenever bad acts evidence can be plausibly
linked to “another purpose,” such as knowledge or
intent, listed in the rule. United States v. Miller, 673 F.3d
688, 696 (7th Cir. 2012). The Rule 402 requirement
of relevance and the unfair prejudice balancing inquiries
8                                               No. 11-3347

of Rule 403 still apply with full force. Id. (citations omit-
ted). Under Rule 403, relevant evidence “may be excluded
if its probative value is substantially outweighed by
the danger of unfair prejudice.” Fed. R. Evid. 403;
United States v. Ozuna, 674 F.3d 677, 682 (7th Cir. 2012).
When determining the admissibility of evidence under
Rule 403, this Court “employ[s] a sliding scale approach:
as the probative value increases, so does our tolerance
of the risk of prejudice.” Whitehead v. Bond, 680 F.3d 919,
930 (7th Cir. 2012).
   In Earls’ case, the state court penalties he faced
were highly probative as to his motive to flee. Earls was
fifty-one years old in 2004, and he was facing a
potential sentence that would have likely resulted in
him spending the rest of his life in prison. Earls argues
that informing the jury of the maximum penalty he
faced only invited speculation as to the possible heinous
nature of the charges. We acknowledge that this was a
possibility. Nevertheless, the length of the penalty itself
is exactly what made this evidence probative into
Earls’ motive to flee the country. In this case, the dis-
trict court conducted the Rule 403 balancing test and
excluded the fact that Earls’ pending charges involved
the sexual assault of a six-year-old. Further, it was
made clear during trial that Earls did not face a
mandatory minimum penalty. Therefore, the jury was
aware that Earls could have received a sentence
ranging from probation to sixty years. This balanced
presentation of the evidence mitigated any potential risk
of unfair prejudice and certainly does not outweigh
the probative value of this motive evidence.
No. 11-3347                                                   9

  Seeking to avoid this result, Earls relies on United
States v. Ciesiolka, 614 F.3d 347 (7th Cir. 2010). In Ciesiolka,
we found that the district court abused its discretion
by admitting mountains of Rule 404(b) evidence, much
of which was highly prejudicial, and introduced
in a seemingly unconstrained way. Id. at 358. However,
in Ciesiolka, the prejudicial evidence at issue was day-
long exposure to voluminous evidence that included
appalling images of child pornography and numerous
offensive instant message conversations. Id. at 357. We
reasoned that there was a real danger that such
evidence, dumped without restraint into the record, can
lead a jury to convict a defendant not on the basis
of proof of the crime with which he has been charged,
but for simply being a bad person. Id. The appalling and
voluminous images offered in Ciesiolka differs vastly
from the evidence at issue here. Moreover, we noted in
Ciesiolka that the prejudice could conceivably have
been cured by appropriate limiting instructions. Id. at
358. The district court in Earls’ case provided such a
limiting instruction, directing the jury to only con-
sider the evidence of Earls’ possible state penalties as
evidence of motive. Therefore, we find the district court
did not abuse its discretion in admitting Rule 404(b)
evidence in this case.


  B. Photo Identification
 Earls next objects to the trial testimony of Deputy
Marshal Jeremy Loesch and Department of State Special
Agent Ben Hammond, who testified for the Government
10                                              No. 11-3347

that Earls was the man depicted in the photographs
attached to the Fuhrman passport application and
Indiana state identification card. Earls objected to the
testimony of both witnesses. Both parties agree that the
identifications by Deputy Marshal Loesch and Special
Agent Hammond from the photographs are considered
lay opinion evidence and their admissibility at trial is
governed by Federal Rule of Evidence 701. Rule 701
allows a lay witness to give opinion testimony if it is:
“(a) rationally based on the witness’ perception, or
(b) helpful to clearly understand the witness’ testimony
or determine a fact at issue.” Fed. R. Evid. 701. Earls
argues that Deputy Marshal Loesch and Special Agent
Hammond’s testimony constituted invalid lay opinions
because their testimony was not based upon personal
knowledge of Earls and was not “helpful” as defined by
Rule 701. We review evidentiary rulings of the district
court under a deferential standard, to determine if there
was an abuse of discretion. “A district court abuses its
discretion when it commits an error of law or makes a
clearly erroneous finding of fact.” Christmas v. City of
Chicago, 682 F.3d 632, 638 (7th Cir. 2012).
  The theory behind Rule 701 “is that wherever inference
and conclusions can be drawn by the jury as well as by
the witness, the witness is superfluous; . . . a lay opinion
is received because and whenever his facts cannot be
so told as to make the jury as able as he to draw the
inference.” United States v. Jackson, 688 F.2d 1121, 1124
(7th Cir. 1982); citing 7 Wigmore on Evidence (Chad-
bourn rev. 1978) § 1917.8 at 10. Here, the Government
concedes that neither the Deputy Marshal or the Special
No. 11-3347                                               11

Agent had personally met Earls prior to their identifica-
tion testimony. Their knowledge of Earls’ physical
features stems from their role in his investigation,
during which both the Deputy and the Special Agent
viewed multiple photographs of Earls. However, the
Deputy Marshall and Special Agent were looking at the
same photographs that had already been given to the
jury, and neither man had personal contact with Earls
prior to trial that would have placed them in a better
position to identify Earls as the man depicted in the
photographs than the jury. Rule 701 permits a witness
to offer helpful testimony based upon his or her own
perceptions. Our sister circuits have consistently held
that Rule 701 does not extend so far as to allow a
witness to serve as the thirteenth juror and compare
two pieces of evidence that are already available to the
jury. See United States v. LaPierre, 998 F.2d 1460, 1465
(9th Cir. 1993) (The task of identifying the defendant in
a surveillance photograph is a task best left to the jury,
rather than a witness who had never personally met the
defendant prior to trial); United States v. Jackman, 48 F.3d
1, 4-5 (1st Cir. 1995) (Upholding lay opinion identification
testimony “when the witness possesses sufficiently rele-
vant familiarity with the defendant that the jury cannot
also possess, and when the photographs are not either
so unmistakably clear or so hopelessly obscure that the
witness is no better-suited than the jury to make the
identification” ); United States v. Pierce, 136 F.3d 770, 774
(11th Cir. 1998) (Whether a particular witness is better
suited than the jury correctly to identify a defendant as
the individual depicted in surveillance photographs
12                                             No. 11-3347

turns on a number of factors . . . [p]erhaps most critical
to this determination is the witness’s level of familiarity
with the defendant’s appearance).
  In this case, we find the testimony of Deputy Marshal
Loesch and Special Agent Hammond to be of dubious
value. Neither man had ever met Earls prior to trial.
Furthermore, their identification testimony was solely
the comparison of two photographs already in evidence.
We believe this is a matter that should have been left
to the jury, and find that the Deputy and Special Agent’s
testimony was admitted in error.
  Nonetheless, Earls’ conviction still stands because
the error was harmless. “An error is harmless if the re-
viewing court is convinced that the jury would have
convicted even absent the error.” United States v. Simmons,
599 F.3d 77, 780 (7th Cir. 2010). Earls conceded that
he used the Fuhrman passport in Panama to secure
a Panamanian retirement visa. Earls even initially identi-
fied himself as David Furhman when approached
in Boquete by law enforcement. And, David Fuhrman
identified Earls as the man depicted in the Indiana
state identification card photograph. As Earls’ brother-
in-law, there is no doubt Fuhrman had personal
familiarity with Earls. In light of the overwhelming evi-
dence in this case, it is reasonable to conclude that
the outcome of this trial did not turn on the testimony of
the Deputy Marshal and Special Agent. Therefore, we
find the admission of the lay witness identification testi-
mony of Deputy Marshal Loesch and Special Agent
Hammond to be harmless error.
No. 11-3347                                              13

  C. Cross-Reference in Sentencing Guideline § 2L2.2(c)
  Earls’ final contention on appeal is that his sentence
should be vacated because the district court errone-
ously calculated his Sentencing Guideline range through
a cross-reference contained in § 2L2.2(c)(1)(A). We
review the legal interpretation of a section of the Guide-
lines de novo. United States v. Zamora, 320 F.3d 704, 708
(7th Cir. 2003).
   Based on Earls’ three-count conviction of making a
false statement on a passport application, aggravated
identity theft, and knowingly transferring a stolen iden-
tification document, Earls’ PSR recommended that his
total offense level be set at fifteen. The PSR originally
calculated Earls’ base level offense to be eight, but in-
creased his offense level to fifteen through the applica-
tion of a cross-reference listed in Sentencing Guidelines
§ 2L2.2(c)(1)(A). The PSR concluded that because Earls had
used a passport in the commission of a felony, namely bail
jumping, the court should apply § 2L2.2(c)(1)(A).
Section 2L2.2(c)(1)(A) directs that “[i]f the defendant used
a passport or visa in the commission or attempted com-
mission of a felony offense, other than an offense
involving violation of immigration laws, apply § 2X1.1
(Attempt, Solicitation, or Conspiracy) in respect to that
felony offense.” U.S.S.G. § 2L2.2 (c)(1)(A) (2010). In turn,
§ 2X1.1 of the Sentencing Guidelines then directs the
court to apply “[t]he base level from the guideline
for the substantive offense, plus any adjustments from
such guideline for any intended offense conduct that
can be established with reasonable certainty.” U.S.S.G.
14                                             No. 11-3347

§ 2X1.1(a) (2010). Here, the district court determined by
a preponderance of the evidence that Earls used
his passport to commit the state court felony offense of
bail jumping. Pursuant to Wisconsin Criminal Code
 946.49(1), “Whoever, having been released from custody
under chapter 969, intentionally fails to comply with the
terms of his or her bond” commits a Class H felony if
the person is charged with a felony. The district court
concluded that this offense most closely correlates to
Sentencing Guideline § 2J1.6 (Failure to Appear by De-
fendant) and therefore applied that Guideline, thereby
bringing the offense level to fifteen.
  Earls argues that the cross-reference was done
in error based upon the commentary language contained
in Application Note 2 to § 2X1.1. Application Note 2
defines “substantive offense” to mean “the offense that
the defendant was convicted of soliciting, attempting, or
conspiring to commit.” U.S.S.G. § 2X1.1 cmt. n.2 (2010).
Earls, therefore, contends that the district court erred
when it applied § 2X1.1 because at the time Earls was
sentenced, he had not been actually convicted for failure
to appear in Wisconsin state court, the underlying
offense at issue here. In turn, Earls contends that there
is therefore no “substantive offense” for purposes of
§ 2X1.1, and as a result, no basis for the cross-reference.
Earls argues that absent the application of the cross-
reference contained in § 2L2.2(c)(1)(A), his base offense
level would have remained at level eight, which carried
a recommended sentencing range of zero to six months.
  As Earls concedes, his position is contrary to precedents
from other jurisdictions. See United States v. O’Flanagan,
No. 11-3347                                              15

339 F.3d 1229, 1233 (10th Cir. 2003); United States v.
Drew, 200 F.3d 781, 879 (D.C. Cir. 2000); United States v.
Branch, 91 F.3d 699, 742-42 (5th Cir. 1996); United States
v. Smith, 997 F.2d 396, 397 (8th Cir. 1993). The Tenth
Circuit effectively addressed the issue of whether the
commentary contained in Application Note 2 to § 2X1.1
applies when the Guideline is reached by cross-reference
in United States v. O’Flanagan, 339 F.3d 1229, 1233 (10th
Cir. 2003). In that case, O’Flanagan argued that his sen-
tence was illegally enhanced by the district court’s cross-
reference from U.S.S.G. § 2K2.1(c)(1)(A) to § 2X1.1,
which he argues, resulted in an improper use of § 2B3.1(a)
(robbery Guideline) to calculate his sentence. Id. at 1231.
O’Flanagan contended that the district court should not
have used the robbery Guideline to calculate a higher
offense level because he had not been convicted of
robbery. Id. Ultimately, the Court concluded that § 2X1.1,
when cross-referenced by § 2K2.1(c), does not require
a conviction before a district court may apply the use
of the Guideline provision applicable to the conduct
underlying offense. Id. at 1234. The Court further
noted their conclusion was confirmed by the express
intent of the Sentencing Commission, the uniformity of
persuasive authorities, the purpose of the Sentencing
Guidelines, and the context in which § 2X1.1 is used. Id.
  We agree with our sister circuits. We find that the
commentary of Application Note 2 does not apply when
§ 2X1.1 is reached by cross-reference from § 2L2.2(c)(1)(A).
When § 2X1.1 is applied directly, the note clarifies that
the Guideline is directing the district court to begin
with the Guideline of the substantive offense underlying
16                                              No. 11-3347

the conspiracy conviction. However, when § 2X1.1 is
reached by cross-reference, it rare that a defendant will
have already been convicted of “soliciting, attempt, or
conspiring to commit” an underlying offense at the time
of sentencing. Therefore, we conclude that the com-
mentary in Application Note 2 was logically intended
to be applied when § 2X1.1 is applied directly, not when
it is reached through cross-reference from § 2L2.2(c)(1)(A).
   As a result, we find that the district court did not err
in its calculation of Earls’ offense level.


                   III. CONCLUSION
  For the foregoing reasons, we A FFIRM the judgment of
the district court.




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