                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0087n.06

                                          No. 17-1439

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
UNITED STATES OF AMERICA                                )                       Feb 23, 2018
                                                        )                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
RA’KESIA T. GILBERT, aka Rakesia T. Gilbert             )       COURT FOR THE WESTERN
                                                        )       DISTRICT OF MICHIGAN
       Defendant-Appellant.                             )
                                                        )
                                                        )



       Before: MOORE, THAPAR, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Ra’Kesia Gilbert was involved in a conspiracy to reencode gift

cards with stolen debit and credit card numbers and then use those cards to purchase cigarettes to

sell on the streets. For her involvement in the scheme, Gilbert was convicted of conspiracy to

commit wire fraud, possession of fifteen or more counterfeit and fraudulent access devices, and

aggravated identity theft. Gilbert appeals, claiming that the jury lacked sufficient evidence to

convict her of aggravated identity theft, and that 18 U.S.C. § 1028A(b)(3) unlawfully limited the

trial court’s sentencing discretion. Neither of these claims has merit. We, therefore, AFFIRM

Gilbert’s convictions and sentences.
No. 17-1439, United States v. Gilbert


                                                I.

       Gilbert and her coconspirators were involved in a scheme to reencode gift cards with

stolen debit and credit card numbers they purchased from China. Using the reencoded cards, the

group would buy cigarettes in Michigan and Missouri to resell on the streets of Chicago.

       Prior to her arrest, police twice stopped Gilbert and her coconspirators while they were

driving.   On March 4, 2016, Missouri state troopers pulled over Gilbert and two of her

coconspirators. The officers searched the vehicle and found 227 gift cards and 17,600 cigarettes.

Of the 227 gift cards, only thirteen had numbers encoded that matched the numbers on the front,

and three had no numbers encoded at all. Some of the numbers on the cards “weren’t imprinted

well” and “didn’t look authentic,” according to an agent from the Bureau of Alcohol, Tobacco,

Firearms and Explosives. A few weeks later, on March 30, 2016, police in Michigan stopped

Gilbert and her coconspirators after a convenience store clerk reported potential fraudulent credit

card activity. The police found 169 gift cards and approximately sixty cartons of cigarettes in

the vehicle. Only three of the cards were encoded with numbers that matched the numbers on

the front of the card. Again, many of the cards showed indications of “very poor embossing.”

“[S]ome of the cards were so horribly [embossed] that you could not even make out certain digits

of th[e] account number.” Additionally, some of the cards had numbers that were not in a

straight line, with “some of the numbers [being] higher and lower than others and not

consistent.” One card had “a second set of embossed numbers that [wa]s both upside down and

backwards.”




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No. 17-1439, United States v. Gilbert


       Gilbert was charged with conspiracy to commit wire fraud, 18 U.S.C. §§ 1343, 1349;

possession of fifteen or more counterfeit and fraudulent access devices,1 18 U.S.C. § 1029(a)(3);

and aggravated identity theft, 18 U.S.C. § 1028A(a)(1). A jury convicted her of all three

offenses. At sentencing, the district court determined that the advisory Guidelines range on the

first two counts was 41 to 51 months. The district court rejected Gilbert’s argument that her

mandatory consecutive 24-month prison sentence for aggravated identity theft should result in a

discount on her sentences for the first two counts, noting that 18 U.S.C. § 1028A(b)(3)

prohibited such a consideration. Nevertheless, the district court sentenced Gilbert below the

Guidelines to 27 months’ imprisonment on the first two counts, considering the actual amount of

loss, the overlap in Guidelines factors for this type of fraud case, the number of victims, and

defendant’s criminal history.

       On appeal, Gilbert argues that the jury lacked sufficient evidence to convict her of

aggravated identity theft and that 18 U.S.C. § 1028A(b)(3) unlawfully prohibited the district

court from considering her mandatory sentence for aggravated identity theft when sentencing her

on the other counts for which she was convicted.

                                                II.

       We review de novo Gilbert’s claim that there was insufficient evidence to convict her of

aggravated identity theft.      United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000).

We consider “whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.”      Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).



1
  An access device is a “card, plate, code, account number . . . or other means of account access
that can be used . . . to obtain money, goods, services, or any other thing of value, or that can be
used to initiate a transfer of funds . . . .” 18 U.S.C. § 1029(e)(1).
                                                -3-
No. 17-1439, United States v. Gilbert


“‘Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not

remove every reasonable hypothesis except that of guilt.’ The jury may draw any reasonable

inferences from direct, as well as circumstantial, proof.” Id. (quoting United States v. Spearman,

186 F.3d 743, 746 (6th Cir. 1999)) (citation omitted).

         The jury found Gilbert guilty of aggravated identity theft under two different theories of

liability: personal participation and Pinkerton liability. Under Pinkerton, once Gilbert joined the

conspiracy, she was responsible for any reasonably foreseeable substantive offenses committed

by her coconspirators in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640,

647–48 (1946). Because we find that there was sufficient evidence from which a rational jury

could find Gilbert guilty beyond a reasonable doubt under Pinkerton, we need not decide if there

was also sufficient evidence to sustain a conviction under a theory of personal participation.2

         Gilbert was involved in a conspiracy to commit wire fraud,3 in which she and her

coconspirators reencoded gift cards with stolen debit and credit card numbers and used the gift

cards to purchase cigarettes for resale. In order for Gilbert’s involvement in this scheme to



2
  At oral argument, Gilbert briefly argued that finding her guilty of aggravated identity theft
under Pinkerton would violate the Sixth Amendment by excusing the prosecution from proving
that she had actual knowledge. Gilbert did not raise this argument in her written submissions to
this Court, and we generally do not consider arguments that are raised for the first time before
this Court at oral argument. See Fed. R. App. P. 28(a)(8)(A); United States ex rel. Marlar v.
BWXT Y-12, LLC, 525 F.3d 439, 450 n.6 (6th Cir. 2008).
3
    An individual has committed wire fraud if she:

         having devised or intending to devise any scheme or artifice to defraud, or for
         obtaining money or property by means of false or fraudulent pretenses,
         representations, or promises, transmits or causes to be transmitted by means of
         wire, radio, or television communication in interstate or foreign commerce, any
         writings, signs, signals, pictures, or sounds for the purpose of executing such
         scheme or artifice . . . .

18 U.S.C. § 1343.
                                                -4-
No. 17-1439, United States v. Gilbert


render her liable for aggravated identity theft under Pinkerton, the jury had to determine that,

after Gilbert joined the conspiracy and while she was still a member of it, one of her

coconspirators committed that offense in furtherance of the conspiracy, and that commission of

the offense was within the reasonably foreseeable scope of the conspiracy. Pinkerton, 328 U.S.

at 647–48.

       At trial, Gilbert’s coconspirator, Anthony Gooden, admitted all the facts necessary for a

rational jury to find the first three elements: that he committed aggravated identity theft, in

furtherance of the conspiracy, while Gilbert was a member of it.4 A person has committed

aggravated identity theft if (1) he knowingly transferred, possessed, or used the means of

identification of another person; (2) he knew that the means of identification belonged to another

person; (3) the means of identification was used without lawful authority; and (4) the means of

identification was used during and in relation to wire fraud or access device fraud. 18 U.S.C.

§§ 1028A(a)(1), 1028A(c)(4), (5); Flores-Figueroa v. United States, 556 U.S. 646, 657 (2009).

At trial, Gooden testified that, as part of the conspiracy, he wired money via Western Union to

China to obtain stolen credit card numbers.5         Gilbert concedes that Gooden’s testimony



4
 Like Gilbert, Gooden was charged with aggravated identity theft, but this charge was dropped
pursuant to a plea deal in which he agreed to testify against Gilbert.
5
  A credit card number belonging to another person is a means of identification of that person.
See 18 U.S.C. § 1028(d)(7)(D) (“[T]he term ‘means of identification’ means any name or
number that may be used, alone or in conjunction with any other information, to identify a
specific individual, including any . . . telecommunication identifying information or access
device (as defined in section 1029(e)).”); 18 U.S.C. § 1029(e)(1) (defining “access device” as
“any card, plate, code, account number, electronic serial number, mobile identification number,
personal identification number, or other telecommunications service, equipment, or instrument
identifier, or other means of account access that can be used, alone or in conjunction with
another access device, to obtain money, goods, services, or any other thing of value, or that can
be used to initiate a transfer of funds (other than a transfer originated solely be paper
instrument)”).


                                               -5-
No. 17-1439, United States v. Gilbert


established that he knew that he was purchasing credit card numbers that belonged to people who

had not given him permission to use the cards.6 He stated that another member of the conspiracy

then had the gift cards reencoded with the stolen credit card numbers. He testified that he,

Gilbert, and two others would use the reencoded gift cards to purchase cigarettes for resale in

Chicago. A rational jury could therefore conclude that Gooden had committed aggravated

identity theft in furtherance of the conspiracy to commit wire fraud. A rational jury could also

conclude that the substantive crime Gooden committed occurred while Gilbert was a member of

the conspiracy, as Gooden testified that Gilbert and her boyfriend recruited him into the

conspiracy and there is no evidence that Gilbert ever left.

       The final question, then, is whether a rational jury could have found that it was

reasonably foreseeable that a member of the conspiracy would commit aggravated identity theft

in furtherance of the conspiracy to commit wire fraud.        See Pinkerton, 328 U.S. at 648

(distinguishing the case from one in which the substantive offense of a coconspirator “was

merely a part of the ramifications of the plan which could not be reasonably foreseen as a

necessary or natural consequence of the unlawful agreement”). The government presented

significant evidence that Gilbert was aware that the gift cards used in the scheme were reencoded

with sixteen-digit numbers purchased from China and that the reencoded cards could then be

used to buy merchandise. There was no evidence to suggest that any precautions were taken to

ensure that these were not credit or debit card numbers belonging to actual people. Therefore, a

rational jury could find that it was reasonably foreseeable that at least one member of the

conspiracy would purchase at least one sixteen-digit number knowing that it was a credit card

number belonging to a real person—in other words, that one of her coconspirators would commit

6
  While Gilbert spends much of her briefing arguing that she did not know that the stolen
numbers obtained from China belonged to other people, she concedes that Gooden knew.
                                                -6-
No. 17-1439, United States v. Gilbert


aggravated identity theft. See Tocco, 200 F.3d at 424 (“The jury may draw any reasonable

inferences from direct, as well as circumstantial, proof.” (citation omitted)).

       Gooden testified that he wired money via Western Union to China to obtain stolen credit

card numbers and that $500.00 would buy fifty stolen numbers. Gooden also testified that he,

Gilbert, and their two coconspirators discussed wiring money to Western Union to get the

numbers. Moreover, the prosecution introduced receipts showing that Gilbert herself had sent

money via Western Union to China on more than one occasion, including sending $500.00 to

Yanming Wang in Shenzhen, China—the same person from whom Gooden admitted to

purchasing stolen credit card numbers. After her arrest, Gilbert admitted to a fellow detainee,

Jasma Allen-James, that she was in custody for credit card fraud and that she, her boyfriend, and

two other men had been buying cigarettes with credit cards. Gilbert told Allen-James that “you

have to buy these cards and then you have to have a machine, and that’s how you load the funds

onto it, with the machine. It’s a reader and a writer.” The prosecution also introduced evidence

that many of the cards seized during the two traffic stops showed physical signs of tampering and

indications of re-embossing. Additionally, the prosecution presented ample evidence to show

that the reencoded gift cards worked: Gooden’s testimony, receipts for purchases made with the

cards, and video surveillance all demonstrated that Gilbert and her coconspirators were able to

successfully use many7 of the compromised card numbers to purchase cigarettes. In the context

of this conspiracy to commit wire fraud involving reencoded gift cards, a rational jury could

conclude that it was reasonably foreseeable that one of the coconspirators would knowingly

purchase stolen credit and debit card numbers belonging to real people. Accordingly, there was



7
  Not every card number was usable. Gooden testified that he, Gilbert, and two others worked
together and, if a card did not work at the point of sale, someone else in the group would give the
cigarette purchaser another card.
                                                 -7-
No. 17-1439, United States v. Gilbert


sufficient evidence to support Gilbert’s conviction for aggravated identity theft under the

Pinkerton theory of liability.

                                              III.

       Gilbert next challenges her sentences on the first two counts of the indictment:

conspiracy to commit wire fraud and possession of fifteen or more counterfeit and fraudulent

access devices. At her sentencing hearing, Gilbert argued that the court should “depart to an

extraordinary level” when sentencing her on those two counts in light of the mandatory

consecutive sentence of 24 months’ imprisonment on count three, aggravated identity theft. The

district court rejected this argument, correctly holding that such consideration is expressly

prohibited by 18 U.S.C. § 1028A(b)(3), which states:

       [I]n determining any term of imprisonment to be imposed for the felony during
       which the means of identification was [used], a court shall not in any way reduce
       the term to be imposed for such crime so as to compensate for, or otherwise take
       into account, any separate term of imprisonment . . . imposed for a violation of
       this section . . . .

Id. (emphasis added). The district court nonetheless sentenced Gilbert below the advisory

Guidelines range (41–51 months) on the first two counts, imposing a 27-month sentence after

considering the amount of loss, the overlap in Guidelines factors, the number of victims, and

Gilbert’s criminal history. The district court also imposed the mandatory consecutive sentence

of 24 months’ imprisonment on count three.

       Gilbert now concedes that § 1028A(b)(3) prohibited the district court from accounting for

the mandatory two-year sentence for aggravated identity theft when fashioning a sentence on the

other counts.    She instead argues, for the first time in this court,8 that the operation of



8
  Failure to present arguments in the district court ordinarily results in plain error review on
appeal. The government, however, has not asked that we apply the plain error standard.
Ultimately, it makes no difference which standard we apply because there was no error here.
                                              -8-
No. 17-1439, United States v. Gilbert


§ 1028A(b)(3) renders her sentence on the other two counts either substantively unreasonable or

unconstitutional. Her arguments are meritless.

       Gilbert claims first that her sentences on counts one and two were substantively

unreasonable because § 1028A(b)(3) forbade the district court from employing the full range of

discretion afforded to it by 18 U.S.C. § 3553(a).9 Congress may, however, override the general

sentencing provisions of § 3553 in specific sentencing statutes, as it expressly did in

§ 1028A(b)(3). The Supreme Court, in fact, has pointed to § 1028A’s language as “a clear way

to bar consideration of a mandatory minimum.” See Dean, 137 S. Ct. at 1178. Gilbert’s

sentences on counts one and two were not rendered substantively unreasonable by the district

court’s following Congress’s express command.

       Gilbert next argues that the Sixth Amendment prohibits Congress from curtailing the

district court’s discretion to consider her mandatory sentence for aggravated identify theft when

imposing sentence for the underlying offenses. But nothing in the Sixth Amendment entitles

defendants to unlimited judicial discretion in sentencing. See United States v. Wimbley, 553 F.3d

455, 462–63 (6th Cir. 2009) (“[T]here is no doubt that Congress has authority to limit judicial

discretion, or even eliminate it altogether . . . .” (citation omitted)). If it were otherwise, the

mandatory consecutive sentence required by § 1028A and imposed upon Gilbert for count three

of the indictment would itself be unconstitutional. But Gilbert, with good reason, concedes that

such is not the case. Mandatory sentences were commonplace at the Nation’s founding and are

consistent with the Sixth Amendment, so long as juries, rather than judges, make the factual




9
  As the Supreme Court has explained, “[t]he § 3553(a) factors are used to set both the length of
separate prison terms and an aggregate prison term comprising separate sentences for multiple
counts of conviction.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017); see also 18 U.S.C.
§§ 3582(a), 3584(b).
                                                 -9-
No. 17-1439, United States v. Gilbert


determinations necessary to authorize them. See Apprendi v. New Jersey, 530 U.S. 466, 478–83

(2000). If Congress is free to eliminate judicial discretion by prescribing a mandatory sentence

for one of Gilbert’s convictions, the same principle dictates that Congress may constitutionally

curtail judicial discretion to discount the sentence on other counts to compensate for the

mandatory sentence. Congress, in § 1028A, has done so in the clearest terms. The Constitution

commands no more.10

       Neither 18 U.S.C. § 3553(a) nor the Sixth Amendment prohibits legislative limitations on

judicial discretion in sentencing like that set forth in § 1028A(b)(3). Accordingly, we reject

Gilbert’s claim that 18 U.S.C. § 1028A(b)(3) is unconstitutional and affirm her sentences.

                                              ***

       For the reasons above, we AFFIRM Gilbert’s convictions and sentences.




10
   To the extent that Gilbert argues that her sentences are unconstitutional because the district
court engaged in judicial factfinding, this argument fails because she has identified no fact that
the sentencing judge impermissibly found. Cf. Apprendi, 530 U.S. at 490 (“Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).
                                              -10-
