           Case: 18-14168   Date Filed: 10/30/2019   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14168
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:18-cr-20151-DMM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                  versus

TANIESHA THELMA STUART,

                                                        Defendant - Appellant.

                       ________________________

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

                            (October 30, 2019)

Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Taniesha Stuart appeals her 60-month sentence for unlawful possession of

mail, intentional possession of 15 or more unauthorized access devices, and

aggravated identity theft. Stuart argues that the district court improperly applied a

two-level enhancement for production of an unauthorized access device and

improperly failed to apply a two-level reduction for acceptance of responsibility.

                                          I.

      In April 2017, Miami police pulled Stuart over for driving a stolen car.

Stuart’s codefendant, Mildred Sawyer, was a passenger in the car at the time.

Officers searched the stolen car and found 16 pieces of mail belonging to 4

different individuals. Law enforcement agents contacted two of those individuals,

who stated that they did not know Stuart and had not given her, or anyone else,

permission to possess their mail. Stuart gave the arresting officers a false name

and identification and provided a second false name to the booking officer but was

eventually identified through fingerprint analysis.

      Two months later, Aventura police stopped Stuart and Sawyer in another

stolen car. This time, Sawyer was driving. Officers searched the vehicle and

found a Louis Vuitton bag containing several purchase receipts from retail stores,

several pieces of mail addressed to Stuart, and a Club Calder card in Stuart’s name.

They also found a backpack containing (1) Florida state benefits cards for both

Stuart and Sawyer, and Sawyer’s Florida identification card; (2) more than 100


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pages of personal identification information (“PII”) of patients from two local

hospitals; (3) multiple pages of handwritten or typed names, dates of birth, and

Social Security numbers; (4) several credit cards not in Sawyer or Stuart’s name,

including a Capital One card bearing the name of a victim referred to as S.J.; and

(5) another Capital One credit card assigned to the same account as the one in

S.J.’s name but embossed with Sawyer’s name. The glove compartment contained

several more retail receipts, including a receipt for a $2573.35 purchase from Louis

Vuitton that was made using a Visa credit card bearing S.J.’s name. In total, police

recovered 17 credit cards and the PII of 221 individuals.

      Law enforcement contacted several hospital patients whose PII was

recovered from the stolen car. The patients stated that they did not know Stuart or

Sawyer and had not given either of them permission to possess their PII. Capital

One contacted S.J. and learned that she had never applied for the Capital One

credit card account and had not authorized Sawyer as a secondary user on the

account. The account had been opened using Capital One’s online portal and a

false email address for S.J.

      A federal grand jury returned a seven-count indictment against Stuart and

Sawyer. Stuart entered an unconditional guilty plea to three counts: possession of

stolen mail, in violation of 18 U.S.C. § 1708; intentionally possessing 15 or more

unauthorized access devices (Social Security numbers and credit card account


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numbers issued to others), in violation of 18 U.S.C. § 1029(a)(3); and, in

connection with her violation of § 1029(a)(3), aggravated identity theft—that is,

knowingly transferring, possessing, and using the Capital One credit card account

number issued to S.J., in violation of 18 U.S.C. § 1028A(a)(1).

        After her arrest and indictment, Stuart was released on bond with certain

conditions, including a requirement that she submit to substance abuse testing and

treatment. She was diagnosed with a moderate cannabis use disorder and referred

to group substance abuse treatment. While on bond—both before and after

entering her guilty plea—Stuart tested positive multiple times for marijuana use.

Several other test results were classified as invalid because the samples were

diluted. In response to the probation officer’s recommendation to revoke Stuart’s

bond, the district court modified the conditions of release to add individual

counseling and increase the frequency of the treatment sessions that Stuart had to

attend, but she continued to test positive and began missing treatment sessions as

well.

        At sentencing, over Stuart’s objections, the district court applied an

enhancement for offense conduct involving the production of an unauthorized

access device, finding that Stuart was responsible for Sawyer’s production of an

unauthorized credit card in Sawyer’s name as a foreseeable act within the scope of

their jointly undertaken criminal activity. The district court also declined to apply


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any offense-level reduction for acceptance of responsibility, noting that although

the court typically did not refuse the reduction because of pretrial-release

marijuana use, the “diluted specimen, the failure to attend treatment, and the

number of occasions are remarkable.” The court further explained that Stuart had

shown no signs of trying to change her behavior. The court sentenced Stuart to 60

months’ imprisonment followed by a three-year term of supervised release.

                                          II.

      We review the district court’s factual findings, including the court’s

determination of the scope of the defendant’s relevant conduct for sentencing

purposes, for clear error. See United States v. Siegelman, 786 F.3d 1322, 1332

(11th Cir. 2015). The district court’s determination of whether the defendant has

accepted personal responsibility for her crimes is a factual finding reviewed under

the clear-error standard. United States v. Williams, 627 F.3d 839, 844 (11th Cir.

2010). We review the court’s interpretation of the Sentencing Guidelines and its

application of the Guidelines to the facts de novo. United States v. Mathews, 874

F.3d 698, 704 n.3 (11th Cir. 2017); United States v. Docampo, 573 F.3d 1091,

1096 (11th Cir. 2009).

                                         III.

      Under U.S.S.G. § 2B1.1(b)(11)(B)(i), the defendant’s Guidelines offense

level is increased by two levels if the offense involved the production or trafficking


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of an unauthorized access device. “Access devices” include cards, account

numbers, personal identification numbers (such as Social Security numbers), or

other means of account access that can be used “to obtain money, goods, services,

or any other thing of value.” 18 U.S.C. § 1029(e)(1); see U.S.S.G. § 2B1.1, cmt.

n. 10(A). An access device is “unauthorized” if it was stolen or obtained with

intent to defraud. 18 U.S.C. § 1029(e)(3). “‘Production’ includes manufacture,

design, alteration, authentication, duplication, or assembly.” U.S.S.G. § 2B1.1,

cmt. n. 10(A) (bold font omitted). The Guidelines definition of “production”

“clearly encompasses a wide range of behaviors,” including “a situation in which a

defendant willfully causes or induces an innocent third party,” such as a bank, to

produce a credit card. United States v. Taylor, 818 F.3d 671, 678–79 (11th Cir.

2016).

      For purposes of determining whether a Guidelines enhancement applies, a

defendant’s “offense” includes the offense of conviction and all relevant conduct.

U.S.S.G. § 1B1.1, cmt. n. 1(I). Relevant conduct, in turn, includes “all acts and

omissions committed, aided, abetted, counseled, commanded, induced, procured,

or willfully caused by the defendant,” as well as the reasonably foreseeable acts of

others in furtherance of “jointly undertaken criminal activity (a criminal plan,

scheme, endeavor, or enterprise undertaken by the defendant in concert with

others, whether or not charged as a conspiracy).” Id. § 1B1.3(a)(1)(A)–(B).


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      To determine whether a defendant is accountable for the conduct of a

codefendant, the sentencing court “must first make individualized findings

concerning the scope of criminal activity undertaken by a particular defendant.”

United States v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003). “In determining

the scope of the criminal activity, the district court may consider any explicit

agreement or implicit agreement fairly inferred from the conduct of the defendant

and others.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002)

(citation and quotation marks omitted). Once the court has determined the scope

of the jointly undertaken criminal activity, it should “then consider the conduct of

others that was both in furtherance of, and reasonably foreseeable in connection

with” such activity. Id. (citation and quotation marks omitted).

      Stuart argues that the district court erred in applying the § 2B1.1(b)(11)

production enhancement based on the issuance of a secondary-user credit card in

Sawyer’s name. She contends that her sentence should be vacated because the

district court failed to make individualized findings as to the scope of the criminal

activity that she agreed to undertake with Sawyer, and that the evidence does not

support a finding that she agreed to or participated in anything more than the

possession and use of unauthorized access devices. We disagree.

      As we have said before, “there is no clear error in cases in which the record

supports the district court’s findings.” Petrie, 302 F.3d at 1290. Accordingly, “if


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the record supports the court’s determination with respect to the offense conduct,

including the imputation of others’ unlawful acts to the defendant[],” the

“sentencing court’s failure to make individualized findings regarding the scope of

the defendant’s activity is not grounds for vacating a sentence.” United States v.

Baldwin, 774 F.3d 711, 730 (11th Cir. 2014) (quoting Petrie, 302 F.3d at 1290).

Here, the record supports the district court’s conclusion that the production of the

Capital One credit card in Sawyer’s name should be attributed to Stuart as “a

jointly undertaken criminal activity under the related conduct provisions.”

       According to the presentence investigation report’s role assessment—to

which Stuart raised no objection—Stuart and Sawyer “jointly conspired in this case

to possess the personal means of identification corresponding to other individuals

without their consent. Thereafter, they fraudulently obtained credit cards and

proceeded to make fraudulent purchases with these credit cards.” 1 These facts,

along with Stuart’s admitted joint possession of more than 200 victims’ PII and 17

unauthorized credit cards, support a fair inference that Stuart and Sawyer agreed to

use the stolen PII to obtain unauthorized credit cards by applying for them in their

victims’ names or in their own names—that is, by causing or inducing “an

innocent third party to create the fraudulent device at the defendant’s behest.”


1
 “A sentencing court’s findings of fact may be based on undisputed statements in the PSI.”
United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (per curiam); see also Baldwin, 774
F.3d at 727.
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Taylor, 818 F.3d at 678. Two of the unauthorized credit cards jointly possessed by

the defendants—the Capital One cards bearing S.J.’s name and Sawyer’s name—

evidently were obtained in just that manner. And by signing the factual proffer in

connection with her guilty plea, Stuart admitted to knowingly using the Capital

One credit card that had been issued in S.J.’s name. All of this evidence supports a

finding that the “production” of one or more of the credit cards Stuart possessed,

including the production of the card bearing Sawyer’s name, was (1) “within the

scope” of the criminal activity that Stuart agreed to undertake, (2) “in furtherance

of the jointly undertaken criminal activity,” and (3) “reasonably foreseeable in

connection with that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Consequently,

the district court did not clearly err in finding that Stuart’s offense involved the

production of an unauthorized access device and did not err in applying the

corresponding sentence enhancement.

                                          IV.

      Stuart also argues that the district court erred in refusing to reduce her

Guidelines offense level for acceptance of responsibility, pursuant to U.S.S.G.

§ 3E1.1. For the first time on appeal, Stuart contends that the court improperly

relied on an unproven allegation that she had assaulted someone with a baseball bat

while on pretrial release as the basis for denying the § 3E1.1 reduction. Although

the district court explicitly stated that it was denying the reduction because of


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Stuart’s continued illegal drug use—and not because of the alleged assault—Stuart

contends that the fact that the district court granted the Guidelines reduction to

Sawyer, who also tested positive for marijuana on several occasions while out on

bond, shows that the assault incident was the court’s real reason for denying the

reduction in her case. But there were other differences. According to the PSI and

its addenda, Stuart tested positive for marijuana use 11 times after her change-of-

plea hearing, and when confronted about her continued drug use, she denied it.

Stuart also missed two treatment sessions and failed to appear for a scheduled drug

test. Sawyer tested positive twice after entering a guilty plea, admitted her

marijuana use, and subsequently modified her behavior, as shown by the negative

urinalysis results thereafter. 2

       “The sentencing court may consider a broad variety of evidence when

considering whether to grant an acceptance-of-responsibility reduction, including

whether the defendant has voluntarily withdrawn from criminal conduct. A district

court does not err in denying the reduction if it concludes that a defendant’s drug

use after his arrest shows that he has not accepted responsibility and turned away

from the lifestyle that motivated his offense.” Mathews, 874 F.3d at 709 (internal

citation omitted). This Court has affirmed the denial of an adjustment for



2
 Sawyer’s test results are not part of the record on Stuart’s appeal. Our understanding of this
history comes from the government’s statement of facts, which Stuart did not contest.
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acceptance of responsibility based on a single positive drug test showing that the

defendant used marijuana after his conviction for an unrelated crime (tax fraud).

See United States v. Pace, 17 F.3d 341, 344 (11th Cir. 1994). We reiterate that a

district court’s finding as to whether a defendant has accepted personal

responsibility for her crimes “is entitled to great deference on review and should

not be disturbed unless it is without foundation.” United States v. Knight, 562 F.3d

1314, 1322 (11th Cir. 2009) (citation omitted). Here, the sentencing court found

that Stuart had not accepted responsibility based on the fact that she had

“continued to use marijuana, failed to abide by her treatment requirements,

submitted a diluted urine test, and showed no signs of trying to change her [sic] or

modify her behavior.” This finding was not without foundation, and we decline to

second-guess it. Furthermore, the sentencing court stated on the record that it had

not considered the baseball-bat incident in making its determination. Stuart did not

question the court’s statement at the time, and we see no reason to question it now.

                                         V.

      For the foregoing reasons, Stuart’s convictions and sentences are

AFFIRMED.




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