     Case: 09-20635 Document: 00511400437 Page: 1 Date Filed: 03/03/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 3, 2011

                                       No. 09-20635                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

THERON M. SMITH, also known as Asani M. Sabola,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-569-3


Before BARKSDALE, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Theron M. Smith pleaded guilty to, among other things, aggravated
identity theft. On appeal, he argues that the district court plainly erred in
accepting his plea because it did not follow the procedures set out in Federal
Rule of Criminal Procedure 11. Because Smith has not shown plain error, we
AFFIRM.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                No. 09-20635

                         STATEMENT OF FACTS
     Pursuant to a plea agreement, Theron M. Smith pleaded guilty to one
count of conspiracy to commit mail fraud, wire fraud, and bank fraud, and one
count of aggravated identity theft. The factual basis presented in the plea
agreement reads as follows:
     (a)   On July 16, 2008, a fraud investigator with Capital One Bank
           (an FDIC insured financial institution), contacted Postal
           Service Inspector Matthew Boyden. The investigator told
           Agent Boyden that for the past month, Capital One Bank had
           been investigating a series of new credit card accounts that
           were opened using fraudulent identity information.

     (b)   The accounts were established over the telephone and the
           internet. The accounts were established using fraudulent
           names and social security numbers (SSNs) belonging to true
           people. Based on the new account applications, Capital One
           Bank mailed the new credit cards to the addresses listed on
           the fraudulent accounts. At the time, Capital One Bank had
           identified over five hundred and fifty (550) accounts that
           appeared to be fraudulent. All of these accounts were linked
           together by common factors such as addresses and telephone
           numbers. The SSNs all come [sic] back to juveniles who did
           not consent that their information be used by the defendants -
           the first five digits of the numbers were obtained from the
           Social Security Administration website.

     (c)   An analysis of the fraudulent accounts revealed that the
           majority of the fraudulent accounts were opened in 2008,
           although fraudulent accounts established in 2007 have been
           identified. The investigator told Agent Boyden that the fraud
           was detected because the SSNs provided did not match the
           names and dates of birth provided. Capital One Bank was
           able to identify accounts that were opened using addresses in
           Houston (TX), Humble (TX), Beaumont (TX), League City
           (TX), Texas City (TX), Jacksonville (FL), Atlanta (GA),
           Fairburn (GA), Bay Point (CA), Carmichael (CA), Galt (CA),
           and numerous other locations (later determined to be
           accessible and controlled by Malon Jackson and Theron
           Smith). Based on the information provided by Capital One

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       Bank, Inspector Boyden was able to work with fraud
       investigators from other financial institutions to identify
       hundreds of additional fraudulent accounts related to this
       investigation.

 (d)   Based on information developed during the investigation,
       Inspector Boyden applied for and received a federal search
       warrant for the residence belonging to Leslie Washington
       because several Capital One Bank credit cards had been
       mailed to Washington’s residence.

 (e)   On July 23 2008, Washington admitted opening a large
       number of fraudulent accounts via the telephone and public
       access computers and admitted receiving the fraudulent
       credit cards via the U.S. Mail. Washington stated she was
       recruited into the scheme by Malon Jackson and her husband
       Theron Smith. Washington stated she met the couple
       through a mutual friend in Beaumont, Texas and then agreed
       with the pair to defraud Capital One Bank and other financial
       institutions. She stated that the couple utilized fraudulent
       addresses at different Commercial Mail Receiving Agency
       (C.M.R.A.) addresses in Beaumont and League City, Texas.
       Investigation by U.S. Postal Inspectors confirmed this
       information and uncovered additional addresses used by the
       trio and noted in paragraph (c).

 (f)   Washington stated she would collect the fraudulent credit
       card mail and deliver it in person to Theron Smith or send via
       U.S. mail to Malon Jackson at different addresses provided by
       Jackson. These mailboxes had been rented by Malon Jackson.
       Cell phone records revealed that Jackson’s cell phone had
       accessed fraudulent Capital One Bank accounts over eighty
       times.

 (g)   In August 2008, a federal search warrant executed on Malon
       Jackson and Theron Smith’s residence in Fairburn, Georgia
       revealed a cache of identification information relating to the
       fraud scheme including a credit card machine used to process
       the fraudulent credit cards delivered to Jackson and Smith as
       well as fraudulent credit cards and credit card applications
       that had been delivered to Jackson and Smith via U.S. Mail.


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      (h)    Video evidence obtained from Capital One Bank showed both
             Jackson and Smith using fraudulent credit cards obtained
             through the scheme to obtain funds. Social security records
             confirmed that the personal identification information of true
             persons were used to open most of these cards. For instance,
             in Count Three, charging a Capital One credit card mailed to
             2925 Gulf Freeway in Houston for Account with the last for
             [sic] digits 5782, the card was opened with the identity of true
             person with the initials M.A. with the SSN ending in 4321.
             Similarly, in Count Four, with a Capital One card send [sic]
             to the same address, for the Capital One Bank account with
             the last for [sic] digits 0611, the card was opened with the
             identity of true person with the initials D.M. with the last for
             [sic] SSN digits 0842. But for the identity of these true
             persons, Capital One Bank would not have extended credit on
             these and other fraudulent cards.
      Before accepting Smith’s guilty plea at his rearraignment proceeding, the
district court informed him that the Government would be required to prove he
“knowingly transferred, possessed or used without lawful authority a means of
identification of another person[] and . . . that the transfer, possession or use was
during or in relation to a felony violation of the mail fraud statute.” The court
then referenced the factual basis as set forth in the plea agreement. Smith told
the court that the facts were true and that he had done everything as described
in the plea agreement.
      After rearraignment but prior to sentencing, the Government filed a notice
to the district court informing it of the Supreme Court’s decision in Flores-
Figueroa v. United States, 129 S. Ct. 1886 (2009). Flores-Figueroa held that in
order to convict a defendant under 18 U.S.C. § 1028A, the Government must
prove that the defendant knew that the means of identification he unlawfully
possessed actually belonged to another person. Id. The Government stated that
it believed the factual basis in Smith’s case was sufficient and noted that the
facts explained the identities used belonged to true persons and that Smith


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obtained the identity information from the Social Security website. The notice
further stated that the Government had discussed the then-pending case of
Flores-Figueroa with Smith prior to his guilty plea. Smith did not move to
withdraw his guilty plea and Flores-Figueroa was not addressed at sentencing.
      Smith’s presentence report (PSR) calculated his guidelines range at 41-51
months for the conspiracy conviction and noted that the identity theft conviction
carried a minimum 24-month sentence. During the sentencing hearing, Smith
acknowledged that he had reviewed the PSR and discussed it with his lawyer.
Explicitly relying on the PSR, the district court sentenced Smith to 41 months
of imprisonment on the conspiracy conviction followed by 24 months of
imprisonment on the aggravated identity theft conviction, resulting in a total
sentence of 65 months. Smith filed a timely notice of appeal.
                           STANDARD OF REVIEW
      Smith raises two points of error on appeal, neither of which he raised in
the district court. Our review, therefore, is limited to plain error. See United
States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). “Plain error review
requires the appellant to show (1) there is an error, (2) that is clear and obvious,
and (3) that affects his substantial rights.” Id. (citation omitted). “If these
factors are established, the decision to correct the forfeited error still lies within
our sound discretion, which we will not exercise unless the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (citation
omitted).
                                  DISCUSSION
      Federal Rule of Criminal Procedure 11(b)(3) “requires the district court to
determine that the factual conduct to which the defendant admits is sufficient
as a matter of law to constitute a violation of the statute” before entering
judgment. Id. at 314. Rule 11(b)(1)(G) requires the district court to address the
defendant in open court and inform the defendant of “the nature of each charge

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to which the defendant is pleading” before accepting a guilty plea.        Smith
contends that the district court did not fulfill either of these requirements in
accepting his guilty plea.
         I.    Factual Basis
         Smith first argues that the district court committed plain error in
accepting his guilty plea because the factual basis did not establish that Smith
knew that the identities he used belonged to real persons. In assessing whether
the factual basis is sufficient, we may examine the entire record of the
proceedings, United States v. Vonn, 535 U.S. 55, 74-75 (2002), including the facts
adduced in the plea agreement and during the colloquy, United States v. Palmer,
456 F.3d 484, 489 (5th Cir. 2006), the factual findings in the PSR if the court
explicitly relied on it, and inferences “fairly drawn” from evidence presented
after the plea but before or at sentencing. United States v. Hildenbrand, 527
F.3d 466, 475 (5th Cir.), cert. denied, 129 S. Ct. 437 (2008) (internal quotation
marks and citation omitted).
         Smith urges the court to follow two recent unpublished cases in which we
vacated the defendants’ pleas of guilty to identity theft charges because the
factual bases of their pleas did not establish the defendants’ knowledge that the
identities they used belonged to real people. United States v. Ogbemudia, 364
F. App’x 72 (5th Cir. 2010); United States v. Kayode, 381 F. App’x 323 (5th Cir.
2010). But in both Ogbemudia and Kayode, the Government conceded that the
factual bases did not establish this element. Ogbemudia, 364 F. App’x at 73;
Kayode, 381 F. App’x at 324.        Here, the Government has made no such
concession, and we must independently review the sufficiency of the factual
basis.
         Our review of the record convinces us that the factual basis supported
Smith’s plea. While the record does not explicitly state that Smith knew that the
fraudulent credit cards utilized identities belonging to real persons, it contains

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ample evidence from which the district court could draw that inference. See
Hildenbrand, 527 F.3d at 475. Smith admitted in the plea agreement that the
conspiracy opened over 550 credit card accounts using social security numbers
of juveniles obtained from the Social Security Administration website and
addresses rented by Jackson, Smith, and Washington.            The factual basis
explicitly stated that two of the credit cards were opened using the identities of
true persons, listing their initials and social security numbers. Additionally, the
PSR, which the district court explicitly adopted at sentencing and is part of the
appellate record, notes Smith’s admission to a probation officer that he
knowingly “used without lawful authority, a means of identification of another
person, to wit, social security numbers of third-party victims.” Because the
district court could fairly draw the inference that Smith knew that the identities
he used belonged to real persons based on the plea agreement and the PSR,
Smith fails to show that the district court plainly erred.
      II.   Nature of the charge
      Smith also argues that the district court erred in failing to advise him that
the Government had to prove that he knew that the identities he used belonged
to real persons. We have previously stated that “Rule 11’s requirement that
defendants understand the ‘nature of the charge’ against them refers to the
elements of the offense.” United States v. Lujano-Perez, 274 F.3d 219, 224 (5th
Cir. 2001). The district court’s duty to inform the defendant of the nature of the
charge is “a distinct and separate requirement” from its duty to ensure that the
factual basis supports the conviction. Id. at 226. In cases involving simple
charges, “a reading of the indictment, followed by an opportunity given the
defendant to ask questions about it, will usually suffice” to fulfill the
requirements of Rule 11. United States v. Cuevas-Andrade, 232 F.3d 440, 444
(5th Cir. 2000) (internal quotation marks and citation omitted).



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                                 No. 09-20635

      It is undisputed that the district court read the indictment to Smith but
did not explain the Supreme Court’s decision in Flores-Figueroa to Smith. That
the district court did not do so was understandable because the Court’s decision
in Flores-Figueroa was released after Smith pleaded guilty. Even if we were to
assume that Rule 11 required the court to inform Smith of this legal
development, this variance from Rule 11 was harmless. See F ED. R. C RIM. P.
11(h). “To determine whether a Rule 11 error is harmless . . . we focus on
whether the defendant’s knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to plead guilty.”
United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993).
      Although the court did not specifically state that the Government had to
prove that Smith knew that the identifications he stole belonged to real persons,
there is nothing to suggest that Smith did not understand the charge or the
elements of the offense.   Smith was aware of the pending Flores-Figueroa
decision before pleading guilty and did not attempt to withdraw his guilty plea
after the decision was issued by the Court. Most importantly, Smith does not
contend that he would not have pleaded guilty but for the court’s alleged error.
The record definitively shows that the district court’s failure to explain the
Supreme Court’s intervening decision in Flores-Figueroa to Smith after
rearraignment was harmless and therefore was not plain error.
      For the forgoing reasons, we AFFIRM the district court’s judgment.




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